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From the Library
of the
Foreign and Commonwealth
Office
Transferred under the terms of the
Foreign and Commonwealth Office
Library Trust Deed 1991
. ^'/cauffn/
LAW
r
■>
/ /
OF
JOHN H. SURRATT
IN
THE CRIMINAL COURT
FOR
THE DISTKICT OF COLUMBIA,
Hon. GEORGE P. FISHER, Presiding.
"\rOXi. I.
WASHINGTON:
FRENCH & IlICHARDSON.
PHILADELPHIA:
J. B. LIPPINOOTT & CO.
1867.
TRI^L
JOHN H. SURRATT
THE CRIMINAL COURT
FOR
THE DISTRICT OF COLUMBIA,
Hon. 6E0B6E P. FISHEB Fresiding.
YOIiUME I.
WASHINGTON:
OOYERNMEKT PRINTING OFFICE.
1867.
INDEX TO VOL. I.
Government tintne9$e$.
Page.
Barnes, General J. K 121, 122
Blinn, C. H i, 174
BeU, W. H 247, 252
Benson, Mrs. M 352
Bunker, G. W 329
Baker, L.B 315
Barton. Greorge D 484
Bates, D. H 506,514
Branson, Mrs. Mary 523
Conger, Colonel E. J 305
Cooper,B.H 183
Canipbell.R.A 192
Conger, William R 357
Chester, S. K 324
Cleaver, William E 204
Cbapin, George F 236
Coleman, W. H 520
Cashing, George W., jr 523
Dje, Sergeanf S. M 131
Dawson, Charles 337
Dunn, Charles C 436
Ferguson, J. M 129
lletcher, J 228
Fitzpatrick, Miss H 232
Gifford, J. J 326
Grillo,S 176
Green wait, J 271
Graut, General U. S 336
Garrett, J. W 302
Gooding, D.S ... 489
Hohart, C 169
Healon, F. M 500
iiall, Frederick H 527
Jackson, Snsan Ann 162
K«it,W.T 123
Kaldenbacb, A 517
Koontz, George S 524
Page.
Lee, John 195
Lloyd, J. M 276,289
Lincoln, Thomas 525
Morgan, R. C 340
Maddox.J.L 259
McDonongh, H. R 356
Martin, M. E 213
McGlermont, Mrs. E. W 365
May,Dr. J.T 270
Marray,Mr8.M 246
McMillan, Lewis J. A 461, 493
Norton, William 510
01in,JudgeA.B 420
Petit, J.W 351
Pettit, J.B 127
Pile8,J.V 265
Pumphrey,J.W 225
Robinson, George T 260
Rathbone, Colonel H. R 124
Reed,D.C 150
Rainey,S.A 203
Ramsell, Charles 498
Rhodes, T B 501
Stewart, ColonelJ. B 125
Sawles, A 366
Sangster, J 166
Sprague, L. S 323
Smoot, E. L 190,218
Sawles, E.A 362
Stabler, Brooke 216, 220
Smith, Colonel H. W 321
Seward. Hon. F.W 249
Seward, Mrs. F. W 252
Seward, Colonel A. H 254
St. Marie, H. B 492
Toffey,J.J 231
Tibbett,J.T 17»
II
INDEX.
'Page.
Taltavul,P 157
Townsend, General E. D 287
Thompson, W. S 510-517
Thompson, J. C 515
Vanderpool, B. W 240
Page.
Wright, J. M 122, 192
Weichman, L. J 369-437
Wheeler, William E 314
Wermerskircb, W. M 485
Walker, James 489
Wood, Charles H. M 494
Defendanfs witnesses.
Bradley, opening address 530
Boss, William .,. 593
xNtueS, Urn XI ••••■ ••••«• ■«••••• fju^
Brown, S.K 611
Baldwinr William O 619
Garland, L. J * 570
Clayton, T. G - 597
Calvert, Frederick 605
Cook, JobnO 645
Clarvoe, John A» W ....... . 688, 696
Cae8,John 724
Dixon, William 583
E«i8tman, A. B 576
Foy, James.. .. , 653
Ford, John T 545, 550
Ford.H.C 553
Ford, J. R 579,593
Fitspatrick, Honora 713
Gifford, J. J 557
Geary, Thomas 640
He8s,C. B 565
Henze, Bernard * . 631
Henze, Martin 632
Homer, W< H.r 644
HoUahan, John 650, 669
Hollahan, Eliza 688
Hawkins, Eliza 692
Kiesecker,A.C-... 585
Kimball, Charles 600
Lamb, James 588
Lloyd, Joshua 598
Lambert, T. J 659 669
Lambert, Mrs. F. R 661
Lee, Edwin G 680
Manson, V. B 621
Middleton, Henry 648
HcDevitt, James A . 707
Naylor, Benjamin J 627
Nackmann, George 635
Owen, S. W 545
Orme, L. J...... 623
Orme, George E 628
O'Beime, James R 610
Pumphrey, James W 644
Pumphrey, Jackson 658
Raybold,T. J 612
Rainey, John 647
Skippon, Charles 593, 712
Stewart, Charles B 723
Voss, A e:iS
Williams, T. W 655
Ward, Francis A 620
Wise, John H 621
Watson, William J 625
Williams, Margaret 666
Wyvill, E. H 712
TRIAL.
June 10, 1867.
The conrt was opened at 10 o'clock. Present : the district attorney, E. C.
Canriogton, esq., his assistant, N. Wilson, esq., and associate counsel, Messrs.
Edwards Pierrepont and A. G. Riddle, for the United States, and the prisoner
aod his coansel, Messrs. Joseph H. Bradley, B. T. Merrick, and Joseph H.
Bndlej, junior.
The Court said : Gentlemen, this is the day assigned for the trial of John
H. Sarratt, indicted for the murder of Abraham Lincoln, late President of the
United States. Are you ready to proceed 1
Mr. Bradley. The prisoner is ready, sir, and has been from the first.
The Court. Are you ready, Mr. Garrington 1
The District Attorney. If your honor please, I am happy to be able to
announce that the government is ready to proceed with the trial. Before we
proceed, however, sir, to empanel a jury, we desire to submit a motion to the
court, which motion we have reduced to writing. With the permission of the
court I will DOW proceed to read it to your honor. It is as follows :
In the Supreme Court of the District of Columbia. United States vs, John
H. Surrait. Indictment, murder.
And now, at this day, to wit, on the 10th day of June, A. D. 1867, come the
United States and the said John H. Surratt, by their respective attorneys ; and
the jurors of the jury empanelled and summoned also come ; and hereupon the
said United States, by tneir attorney, challenge the array of the said panel,
becaui^ be saith that the said jurors comprising said panel were not drawn
according to law, and that the names from which said jurors were drawn were not
selected according to law; wherefore he prays judgment, and that the said panel
may be qu^ished.
The District Attorney. This motion, if your honor please, is sustained by
an affidavit which I hold in my hand, and which, with the permission of your
honor, 1 will now proceed to read. We think that it will be found unneces-
sary, after this affidavit has been read, to introduce any oral testimony.
The affidavit was then read as follows :
District of Columbia, County of Washington^ to vnt:
Be it remembered that on this seventh day of June, A. D. 1867, before the
lubscriber, a justice of the peace in and for the county aforesaid, in the District
aforesaid, personally appeared Samuel Douglass, who, being first duly sworn,
deposes and says, that in the months of January and February, A. D. 1867, he
vas regi:<ter of Washington city, in t^e District aforesaid ; that about the first
of February in said year, this affiant deposited in the box required to be kept
in the office of the clerk of the supreme court of the District of Columbia, four
hondred names, (each name being written on a separate piece of paper, and each
paper being carefully rolled and tied,) as a part of the names from which jurors
were to be selected under the provisions of the act of Congress of June 16, 1862 ;
that at the same time the clerk of the levy court deposited forty names, and the
clerk of Georgetown deposited eighty names in said jury box ; that the names
deposited by this official were selected by him partly from the poll lists of
Washington city and partly from the names of citizens who he thought well
qualified to serve as jurymen ; that the names of the persons so selected by this
affiant as register were not communicated by him to the clerk of Georgetown or
4 TEIAL OP. JOHN H. SUBBATT.
the clerk of the levy court, nor did they at any time know the names selected
by this affiant, nor did this affiant know at any time the names of those selected
by the said clerk of Georgetown, nor by the clerk of the levy court ; that the
names having been deposited as aforesaid, the box was returned to the clerk of
the supreme court of the District of Columbia, and by said clerk sealed, as this
affiant believes, in the presence of this affiant ; that the petit jurors for the March
term of the criminal court, 1867, were selected or drawn from the names depos-
ited in said' box on said'^first day of February, and were drawn by the clerk of
G^orget^>wn,'as this affiant recollects and believes; that the names were deposi-
ted in the manner hereinbefore stated and in no other way, and that, if it appears
that any of the names fur Washington city, deposited as aforesaid, and in the
handwriting of any persop, whether this affiant or his clerk, then the same were
deposited without the knowledge or consent of this affiant ; and further, this
aigiant says that the paper or papers containing the names of those whose names
were written on said four hundred pieces of paper and deposited as aforesaid, he
cannot Diow find, although he has made diligent search for the same.
• SAMUEL E. DOUGLASS.
Subscribed and sworn to before me this sevetith day of June, 1867.
CHAS. WALTER, J. P.
The Court. Mr. Carrington, will you be kind enough to read that part of
the affidavit which speaks of the handwritmg of the affiant ?
Mr< Carrington then read as follows :
** That the names were deposited in the manner as hereinbefore stated, and in
no other way, and if it appears that any of the names for Washington city, de-
posited as aforesaid, are in the handwriting of any person other than this affiant
or his clerk, then the same were deposited without the knowledge or consent of
this affiant.*'.
The Court. Are there any of those names which are not in the handwriting
of Mr. Douglass ?
The District Attorney. Perhaps it is better that I should proceed at once
to state to your honor the points upon which we rely, and which we think will
satisfy the court that the law has not been complied with
Mr. PiBRRRPONT. In any respect.
The District Attornbv. And that a verdict rendered by this jury would
be entirely illegal. Feeling that it would be idle to proceed to trial with the
present panel, we have considered it our duty to present this point to the court,
and with your honor's permission, will lay before you the law bearing on the sub-
ject.
I will read first, sir, those sections of the act of June 16, 1862, (12 Statutes
at Large, p. 428,) which we reeard as necessary to elucidate the propositions
which we propose to submit, and will then state, more clearly than I have done,
the objections which we make. The act is entitled "An act providing for the
selection of jurors to serve in the several courts of the District of Columbia."
Mr. Carrington then read as follows :
Be it enacted by the Senate and House of RepreserUatives of the United States
of America in Congress assembled. That it shall be the duty of the register of
Washington city, and of the respective clerks of the city of Georgetown and the
levy court of Washington county, in the District of Columbia, within one month
after the passage of this act, and on or before the first day of February in each
year thereafter, to make a list of such of the white male citizens, tax-payers,
residing within their respective jurisdictions, as they shall judge best qualified to
serve as jurors in the courts of the said District, in which lists may be included,
in the discretion of the officer making the same, the names of such qualified
persons as were on the list of the previous year, but did not serve as jurors, and
TRIAL OF JOHN H. 8URRATT. 5
the lists thos made by the register and clerks aforesaid shall be kept bj them,
respectivelj, and be delivered over to their successors in office.
Sec. 2, And he it further enactedt That the officers aforesaid shall select from
tbe list of the register of Washington city, the names of four hundred peK«ons ;
firom that of the clerk of Georgetown, eighty persons, and from that of the clerk
of tiie levy court, forty persons, which proportion, after the year eighteen hundred
and sixty-three, may be varied from year to year according to the increase or
decrease of population in the respective jurisdictions, by order of the judges of
tiie circuit court of Washington county.
Sec. 3. And be it further enacted. That the mayors of the cities of Wasbing-
ton and Georgetown, all judicial officers, salaried officers of the government of
the United States, conmiissioners of police, and those connected with the police
or fire department, counsellors and attorneys at law, ministers of the gospel stfiA
priests of every denomination, practicing physicians and surgeons, keepers of
lospitals, asylums, almshouses, or other charitable institutions created' by 6r
under the laws relating to the District of Columbia, captains and mtisters and
other persons employed on vessels navigating the waters of said District, and
keepers of public ferries, shall be exempt from jury duty, and their names shall
not be placed on the list aforesaid.
Sec. 4. And be it further enacted, That the names selected from said lists
shall be written on separate and similar pieces of paper, which shall be so folded
or rolled up that the names cannot be seen, and placed in a box, to be provided
bj the register and clerks aforesaid ; which box shall be sealed, and after being
thoroughly shaken, shall be delivered to the clerk of the circuit court of Wash-
ington county for safe keeping.
Sec. 5. And be it further enacted, That the said register and clerks, and the
clerk of the circuit court, shall, at least ten days before the commencement of
each term of the circuit court, or of the criminal court, meet at the City Hall in
Washington city, and then and there the clerk of the circuit court shall publicly
break the seal of said box, and proceed to draw therefrom the names of so many
persons as are required ; and if the jury about to be drawn is intended for service
in the criminal court, the twenty-three persons whose names shall be first drawn
shall con.^titute the grand jury ; and the twenty-six persons whose names shall
next be drawn shall constitute the petit jury for that term ; but in a capital case
where the said panel shall have been exhausted by reason of challenge or other-
wise, the court before whom such capital case is pending may, in its discretion,
order additional names to be drawn ; and if all of the nam<;8 in the box shall
have been drawn out and no jury found, the court may order the marshal to
summon talesmen until a jury shall be found. And if a jury be required for the
circuit court, the twenty-six persons whose names shall first he drawn shall con-
stitute the jury for that term, and the names of the persons dmwn as aforesaid
shall not be again placed in such box for the period of two years. If any per-
son whose name is so drawn shall have died or removed from the District, or
has become oiherwitte disabled from serving as a juror, the said register and
clerks shall draw from the box another name, who shall serve instead ; and after
the requisite number of jurors shall have been so drawn, the said box shall be
again sealed and delivered to the ch?rk of the circuit court as aforesaid.
Sec. C. And be it further enacted, That it shall be the duty of the marshal
of the District of Columbia, at least five days before the meeting of the court
for which a jury is required, to notify each person drawn, by serving on him a
notice in writhig of his selection as a juror of the court he is to attend, and of the
day and hour he is to appear ; which notice shall be given to each juror in per-
son, or be left at his usual place of residence, a copy of which notice, with his
certificate stating when and in what manner the original was served, shall be
letnmed by the said marshal to the court before the commencement of the
erm for which the said jurors were drawn.
6 TEIAL OF JOHN H. SURRATT.
Sec. 7. And he it further enacted. That in case either of the officers whose
duty it is to make out the lists aforesaid, shall neglect or refuse to act, or in case
either of them shall be interested in any action or proceeding pending in the
said circuit or criminal court, the chief judge of the circuit court shall appoint a
fit and proper person to discharge the duty instead ; and if the persons selected
as jurors do not attend, the court may order the marshal to summon other re-
spectable tax- payers, possessing the other legal qualifications, to supply the de-
ficiency. And if at any time there should not be, bj reason of challenge or
otherwise, a sufficient number of jurors to make up the panel, the court shall
order the marshal to summon as many talesmen as are necessary for that pur-
pose.
Sbc. 11. And be it further enacted. That the names on the lists specified
in the second section of this act shall be selected, as near as may be, from
among the citizens of the several wards of the cities of Washington and G-eorge-
town, and the three divisions of the county of Washington outside the limits of
said cities formed by the Eastern Branch of the Potomac river and Rock creek,
in proportion to the number of taxable inhabitants residing in said wards and
districts, respectively.
Now, if your honor please, we submit the following propositions:
First,' That the jurors constituting this panel were not selected in the manner
required by the act of Congress, to which your honor's attention has been called.
Second. That the jurors were not drawn in the manner required by this act
of Congress.
Third. That the officers have failed to preserve and perpetuato, as required
by this act, the list which they are required by the act to prepare, reduce to
writing, and safely keep, to hand over to their successors in office; and,
Fourth. That the box has not been sealed, as required by the act of Congress,
to which your attention has been called.
Mr. Bradley. Is that in the affidavit, that the box was not sealed /
Mr. PiBRBEPONT. Yes, sir.
Mr. Bradley. It had escaped my attention.
The DisrRrcT Attorney. Now, if your honor please, in regard to the first
proposition, you will find that the law requires that the jurors who are to serve,
either in the circuit or criminal court, for the District of Columbia, shall be
selected by the three officei*8, constituting a board for this purpose Congress
evidently did not intend to leave the selection of jurors to any one officer, or any
one person, but in so many words, it charges the duty of selecting the jurors upon
the three officers named— the register of the ciiy of Washington, the clerk of
Georgetown, and the clerk of the levy court of the county of Washington.
Your honor understands the mode in which it is done. The register of the
city of Washington makes out a list of four hundred persons, whom he, in the
exercise of his discretion, shall think best qualified to serve as jnroi*s. The
clerk of Georgetown makes out a list of eighty; the clerk of the levy court
makes out a list of forty ; and from these three lists, thus prepared by these
officers, by their joint action, the jurors are selected. Then, if your honor please,
that being the case, let us see if this requirement of the law has been complied
with.
Your honor will observe from the affidavit of Mr. Douglass, (and surely, sir,
there is no more faithful and intelligent officer than he is, but he may have mis-
apprehended this law,) that he selected four hundred names, wrote them down
upon separate pieces of paper, and deposited them in the box without communi-
cating with the clerk of the levy court, or the clerk of Georgetown, with whom
the law requires him to co-operate in making the selection of jurors. In other
words, according to the affidavit which has been read here, he selected the
names of four hundred persons to serve as jurors, in which selection neither the
TRIAL OF JOHN H. SURRATT. 7
clerk of the levy court, nor the clerk of Georgetown, had any voice. It is
the act, then, of one man, whereas the law requires, if your honor please, and
very properly, as we conceive, that it should be the act of three men. You will
see, sir, mm the language of the act, that it was the intention of the national
legislature that it should be the joint action of the three officers charged with the
important duty of selecting persons, who should represent the community, in the
administration of justice, as jurors. They were unwilling to intrust this import-
ant duty exclusively to the discretion of a single officer. Not only has this dis-
cretion been, in violation of law, exercised by one, but, sir, according to this
affidavit, it further appears that a similar mistake was committed by the other two
officers. Mr. Laird, the clerk of Greorgetown, selects eighty persons; Mr.
Oallan, the clerk of the levy court, selects forty; and thus the case is pres-
ented to your honor of four hundred jurors selected by one man, eighty jurors
selected by another man, and forty jurors selected by a third man, when the law
distinctly requires that it should be the joint action of all.
Then, if your honor please, if this affidavit is worthy of your confidence, this
is a fata] objection to the present panel.
But, again, sir, the section to which I called your attention specifies distinctly
the mode in which these jurors shall be drawn. Congress has thought proper
that jurors who shall be charged with the highest and most solemn duty of an
American citizen, who are intrusted with the lives and liberties of their fellow-
citizens, should be selected by one board, and drawn by another officer. But
how is it in this case? One of the men who selected a portion of the jurors,
according to the testimony of Mr. Douglass, assumes to discharge the duty which
is devolved by law upon the clerk of the circuit court. He selects, and then
draws. The law says the three officers, to whom your attention has been called,
shall select, and the clerk of the circuit court shall draw. It is unnecessary
that I should detain your honor further upon this point, for it is clear and con-
diuive.
Again, sir, in the discharge of this important duty. Congress has very wisely
provided for all the details. It may appear to your honor at the first glance to be
Qnimportant, but upon a moment's reflection you will see that it is not so. Con-
grws having prescribed how these jurors shall be selected ; how these names
Rhall be deposited, it also designates the officer by whom the jurors are to be
drawn, and when and where such drawing is to take place. We submit, there-
fore, that this important requirement of the law has not been complied with by
the officers charged with the peiformance of the duty. These three points we
think are fatal objections to proceeding with the present panel.
Again, if your honor pleases, Congress has thought it proper that the founda-
tion of the action of these officers should be preserved and perpetuated, and
▼ery wisely. The officers charged with this important duty, and invested, as
yonr honor will observe here by the language of the act, with a discretion,
shall preserve and perpetuate the testimony, or rather the lists of the names
from which they made their selection ; and why 1
Mr. PiRRREPuNT. No list was ever made.
The District Attorney. Exactly, I am coming to that. The law
requires, not only that they should make a list, but that they should preserve
Md perpetuat4' it, handing such list over to their puccessors, when they shall
retire from office. If through misapprehension, or mistake, or for any other
reason, these officers fail to properly discharge this important duty, the court
having a supervisory power over their action may correct it, if it be capable
of correction, but if they fail to reduce these names to writing — if they fail to
P^tnate them, and therefore cannot now, when called upon, submit them to
the inspection of your honor, how can this court, charged by the law of the land
'nth a supervisory power over the discretion intrusted to these officers, discharge
its duty ? These lists, according to the affidavit, were never made — at least there
8 TRIAL OF JOHX H. SURRATT.
M DO certahatv of their having been made. Ther cannot be prodaeed at all
eTffct*.
ThiB failure of datj. then, on the part of these offieer*. is fatal, because the
teftimoDv, or rather the first preliminaiy et^ep required hv the act of CoDgreas
to be taken, has not been taken ; and second, becaose yoor honor cannot be ad-
Tised 6om these list*, of the selections which weye reallj made. Therefore, if
m paint of fact, there has been either throngh hmd or partiality, which we do
not charge in this case, ur misappreheiisioD of the law, sncn develicdon of do^
as we hav^ stated, it will be impossible for jour honor to dvcharge that saper-
risoiy dntj. which is dearly incnmbent npon ereiy oonn in Vie administration
of justice.
I do not know that it is neeeasary that I shonli detain yoor honor farther.
We think these objections are £iia]« It may be proper for me to state in this
connection thai the object of tius motion is not delay. We are ready and anx-
ious f^r a triaL and miy I be pardoned for saying here that nerer at any stage
of this case, hare I been disposed to delay it any longer than we thooght neces-
sary f«ir the pixtmoTion of the eanse of justice and of truth. I repeat we are
ready n iw. bu: we want a jury summoned according to law, so that no objeetioa
can be made hereafter, either by the goTenmient or the accused, whateTer may be
the event of this mo«t important and solemn triaL To show yoor honor that there
need be no delay. I will call your attention to tiie 5th section of the act, which
gives the court plenary pow;?rs to proceed at once, if there has been such in-
f<MmaliTy in the selection of the juror? by the officers char^i with that duty;
or if fnnn any caher cause it is found impossible to proceed with the panel so se-
lected, the conn may order the mai^hal to summon talesmen at once. I will
read.
Mr. Canrngton then read the dth section as follows:
bBC. o. Jm^ be iffwrtk^ enacted^ That the said register and clerks, and the
derk of the circuit c>>urT. shall, at least ten days before the commencement of
each term \i the circuit or of the criminal court, meet ax the City Hall, in
Washington chy.and then and there the clerk of the circuit court shall publicly
break the seal of said bi>x and proceed to draw therefrom the names of so many
persons as are required : aod if the juiy about to be drawn i« intended for
service in the criminal court, the twenty>thiee persons whose names shall be
first drawn shall consiimte the grand jury : and the twenty-six persons whose
names shall next he drawn shall constitute the petit jury for that term : but in
a capital case mhere the said panel shall have l^een exhausted by reason of chal-
lenge or otherwise, toe court before whom such ca;.iital case is pending may, in
its discretion, order Hdditi>aal names to be drawn : and if all of the names in
the box shall have been drawn oat and no jury found the court m&y order the
mmhal to summon talesmen until a jury shall be found. And if a jury be
required f^r the circuit court, xht' twenty >six per^.ms wb«>se namtss shall first be
drawn shall constitute the jury for that term, and the names of the persons
drawn as aforesaid shall not be again placed in such box f«ir the period of two
years. If any person whose name is so drawn shall have died or removed from
the District, or has liecome otherwise disabled from serving as a juror, the said
register and clerks shall draw from the box another name, who shall serve
inst«-ad : and after the requisite number of jurors shall iave been so drawn the
said box shall be again scsiled and delivered to the clerk of the cireoit court as
aforesaid.
That is what we now ask your honor to do. I have authorities showing that
the whole matter
The Court. That relates to the entire panel ?
Mr. PiESREPOXT. Yes. sir.
Itr. BajiDLKV. Before we proceed at all to the discussion of the qneetioos
laised npon this motion and affidavit. I beg leave to submit to the coait that, at
TRIAL OP JOHN H. 8UEBATT. 9
Mr, DoQglasB is at quite a convenient distance from here, he be sent for and
examined by the court, in order tha.t we may see what the facts really are. I
am not apprised, up to this moment, that they have departed from the mode of
preparing and drawing juries observed from the year 1862 up to this time. I
take it for granted that they have pursued the same course all the way through.
I would be very glad to havejt^he opportunity of cross-examining the witness.
I see the affidavit is iu the handwriting of Mr. Wilson, the assistant district
attorney, and I should. like to have Mr. Bouglass brought in and examined as
to particulars. I think it is best to first ascertain the facts before we attempt
to apply the law to this particular case.
Mr. PiBRREPONT. We do not see how there can be any objection to that, if
jour honor sees fit. I think it is a very proper request. •
The Court. Do I understand the counsel for the prosecution to agree to an
oral examination ?
Mr. Pi KRRBPONT. I know nothing as to what the custom here is, your honor.
Whatever is right and fair in the matter, of course, we want done. If such
is the custom, we assent to it ; if such is not the custom, we do uot. Where I
am in the habit of practicing it is the custom to bring on the affidavit before the
eonrt where a motion is made.
The Court. I cannot speak as regards the custom here, except for the four
years past In that time there has been no custom at all, for the simple rea:)on^
that no case of this sort has ever been presented to the court. I understand^
from Mr. Middleton, who has been deputy clerk of the court for a number of"
years, that no case has ever occurred under his observation. I presume, kow--
ever, that it is to be viewed in the same light as a motion to change the venue.
In that case the motion is granted Upon affidavit ; oral explanations are not cus-
tomary. 1 have never myself, in my practice anywhere, seen a case of the sort. .
It is right, in a case of this character, that everything which forms the basis of at
decuiion by the court should appear upon the record. For that reason, I pre-
SQine, the law requires that motions of this kind should be grounded' upon,
written testimony.
Mr. Bradlrv. I will simply state, in reply to the suggestions throwu out by
your honor, that the reporter is here to take down the affidavit of the party.
The examination and cross-examination so taken down, being written out in
regular order among the other proceedings, will thus appear as an affidavit
on record, duly signed by the party, if deemed necessary. I am. not aware of
•nycase in my experience of this kind. We raised the question once, many
years ago, but it was disposed of without any examination into the facts.*
That was a challenge of the array by the prisoner, so far as my memory
serves me, and the case went on. We desire, however, to have spread upon
the record all the facts of this case, what construction this law has received,
And how it has been interpreted and carried out since its pas8a<i;e to this day.
I think we can prove very clearly that in this instance these officers have fol-
Wed the uniform practice since the pafsage of the act, in June, 1862. How
fc^that may tend towards the proper construction of the law is another ques-
tion, to be considered when we come to ascertain what the facts are. What we
propose is, to have put upon the record a history of the action. under this law.
Mr. PiBRRKPONT. I suppose, sir, if your honor please if that is the case —
*^ perhaps it is proper, as the learoQ^ counsel suggeslSr that it should be
placed upon the record for future guidance — that it is- necessary it should be
h affidavit, to be regularly filed. The district attorney and myself, upon con-
s^tation think, accepting the theory of the learned vcouusel/ that the facts, with
the decision, should be preserved as a part of the record ; . that iL should be by
^davit, and we feel impelled, therefore, to ask the court that such a course be
porsned.
10 TRIAL OF JOHN H. SURBATT.
Mr. Bradley. And in tbat view I desire that the affidavit may be made in
open coart, in the presence of the counsel and the prisoner, taken down by the
reporter, and afterwards read over to the witness and signed by him. That
can be done very rapidly, and I hope, as it is a matter entirely within the dis-
cretion of your honor, that such a course will be pursued.
The District Attornby. Will your honor«please defer your ruling for a
moment until I have an opportunity to consult with my associate ?
After a brief conference, Mr. Pierrepont said : If your honor please, with the
understanding that it be, as coudsel suggests, taken down here in the presence
of the court and counsel, and made to become a formal affidavit, to be placed on
the files of the court, we consent.
Mr. Samubl'E. Douglass was then sworn by the clerk, when the affidavit,
which had been read to the court, was handed to the witness, with the request
that he would read it, and state if it was correct in all particulars.
Witness did as requested, and then stated that it was correct.
He was then examined as follows :
By Mr. Bradley:
Q. Mr. Douglass, how long have you been a register of the city of Wash-
ington?
A. Since the 1st of July, 1861.
Q. You were theu rcgit«ter at the time of the passage of this act of 1862, pro-
viding for the selection and drawing of jurors ?
.A. Yes, sir.
•Q. State whether, in the drawing of this last pand of jurors, you pursued any
new practice, or whether you observed the did one?
A. The old practice. The same, of course, that I had always pursued in
selecting jurors, viz., placing their names on slips of paper, and then putting
those slips in the box.
Q. From the time of the passage of the act ?
A. Yes, sir; from the time of the passage of the act.
Q. Do you recollect whether, shortly after the passage of that act, the register
of the city, the clerk of Greorgetown, and the clerk of the levy court did or
did not take the advice of the judge of the old circuit court as to the mode of
discharging their duty ?
Mr. Piberbpont. Please wait one moment. I do not think the question is
a proper one. I do not propose to discuss the matter, but design simply to make
the objection, and allow the court to decide upon it, without argument.
The Court. I cannot see that it has any relevancy to the matter.
Mr.BfiAULBY. It may be relevant to this extent, your honor, that if the court
then* having jurisdiction, immediately after the passage of the act, gave construc-
tion to it, and these officers acted in pursuance of that construction, and have
since that time followed the same, and have done iu this, as in other instances,
as the court advised them to do, it might have some effect, perhaps.
Mr. PiERRRPONT. The records of the court must determine its decisions, and
not the actions of the witness.
Mr. Bradi^by. That is all very true. The records of the court must show
in the cases between parties; but not with regard to a matter outside of the court,
of the records of the court, and not in g^ judicial proceeding.
The Court. I suppose, Mr. Bradley, you are directing your inquiry to some
extra-judicial opinion which was given by one or more of the judges of the old
circuit court.
Mr. Bradlly. That is it, sir. All three of them were sitting in court. There
was no case before them, however, and therefore, of course, the opinion was
exti-a-judicial to that extent.
Mr. PiBRRBPONT. Of coarse that would have no binding effect.
TEIAL OP JOHN H. SURBATT. 11
Mr. Bradley. I do not claim that it would have any hindine effect. I
simply want to get at the opinion upon which those gentlemen acted, and which
was given at the time of the passage of the act. I would state further, sir, that,
eren had this opinion heen announced from the hench, it, of course, would not
control your honor's decision on the same question ; hut
Mr. PiBBRBPONT. It coul^not he evidence then in any shape.
The Court. I do not see that it has any hearing.
Mr. Bradley. I will not press it, then, your honor.
The examination of the witness was then resumed hy Mr. Bradley :
Q. I understand yoa to say, Mr. Douglass, that in drawing the jurors for the
present term of the court, you made out your list of four hundred tax-payers of
the dty of Washington t
A. No, sir ; I do not know that they were all tax-payers.
Q. Were you not limiting the list to tax-payers ?
A. Not that I was aware of.
The District Attorney. The act says that should he done.
Witness. I did not look into the books iu the collector's office to ascertain
whether they were all tax-payers or not.
Q. Have you any recollection of putting any one on the list who was not a
tax-payer ?
A. I have not.
Q. From that list of persons, thus made out, you afterwards wrote on little
slips of paper to the number of four hundred, each name, rolled them up, and,
without consultation with the clerk of Georgetown, or the clerk of the levy
court, deposited them in the box ?
A. We each deposited our quota in the box — Mr. Callan, Mr. Laird, and my-
self.
Q. But neither of them saw your list?
A. No, sir.
Q. Did you see theirs ?
A. No, sir.
Q. Do I understand you to say Mr. Laird brought in a list of eighty, and Mr.
Callan forty?
A. Yes, sir ; I think that is what the law requires.
Q. They were already rolled up ?
A. Yes, sir.
Q. And each of you deposited the number required by law ; you 400, the
other 80, and the other 40 ?
A.* Yes, sir.
Q. A t the same time ?
A. Yes, sir.
Q. In the presence of each other 1
A. Yes, sir.
Q. That has been your mode of executing that law since the time of its
passage!
A. Yes, sir.
Gross-examination by Mr. Pierrepont :
Q. Mr. Douglass, you didn't see the names of those that the clerk of George-
town deposited ?
A. No, sir ; they were rolled up, and a piece of string tied round them.
Q. You did not see the names of those that the other clerk deposited ?
A. No, sir.
Q. And they did not see the names you deposited 1
A. No, sir.
Q. Were those that they deposited the names of tax-payers J
12 TRIAL OF JOHK H. SURRATT.
A. I do not know.
Q. Were those that you deposited the names of tax-pay ers ?
A. I am not certain. There may have been some that were not tax-payers.
Mr. Mbrrick.. I desire to interpose an objection here. The counsel asks
Mr. Douglass whether he saw the list that was presented by the oflScer of the
corporation of Georgetown, and whether that officer saw the list that was pre-
sented by Mr. Douglass. It is to that inquiry that I desire to make an objec-
tion ; and suggest to your honor its inadmissibility upon this ground : Mr*
Douglass testified that these three officers were present, and together engaged
in discharging the duty which the counsel upon the other side maintain devolved
upon the three jointly.
I understand their position to be this : That the act vested a sort of judicial
or discretionary power in the three, which one could not exercise without the
co-operation of the other two ; and that as the power was exercised by one
without the co-operation of the other two, it was improperly exercised, and
therefore vitiates the act done.
Now, the register of the city of Washington testifies upon the stand that
when this duty was discharged, it was discharged by the three ; that the three
were together, and together deposited certain names in the box, in which, ac-
cording to law, they were to be deposited, and from which Aey were to be
drawn. Now, I submit to your honor, that it is not competent for the counsel
to go behind, and ascertain from one of the parties how far they exercised judg-
ment or discretion. They were present, acting together ; and the act being
done in the presence of all, is, according to law, as a presumption of law, the
act of all under the statute ; and it is not competent for the counsel to go be-
hind the doing of the act thus done conjointly by the three combined, and
ascertain what part of the judgment of each entered into the execution of the
act. It is enough that they were present at the doing of the act, and that the
act was done.
Mr. PiERREPO.XT. My learned friend seems to be arguing anew the general
proposition. If he confines his argument to the question that I put to the wit-
ness, that is one thing. I do not intend at this stage, until the evidence is be-
fore your honor, to argue the general proposition ; and do not propose to
answer him upon that question. I have not finished the re- examination of the
witness, but was interrupted, as I understood, by the learned counsel objecting
to the Hue of examination being pursued. My question was as to the mode in
which the jurors names were put in the box, and which he has answered. Now,
I understand, he substantially moves to strike out
Mr. Mbrrick. If the counsel will allow me a single moment. I did not in-
terpose the objection at an earlier moment for the reason that my associate was
engaged, and I had not the opportunity of consulting with him.
Mr. PiERREPONT. I am not objecting on the ground that the gentleman's
motion comes too late.
Mr. Merrick. 1 am objecting to the testimony, and not arguing the general
proposition.
Mr. PiE3REP0\T. My learned friend, run somewhat, I thought, perhaps in-
advertently, into the general proposition.
The question as to the mode of selecting these jurors is surely a proper
question. I do not think it admits of debate, and I do not think your honor will
require it to be debated.
The Court. I can see no impropriety in the question which you put. The
question which is addressed to the court is as to whether these parties upon
whom the law devolved this duty of selecting the 520 names that are to go into
the general jury box acted together, or acted in their individual and separate
capacity. The question is one which you are seeking to inquure into, and one
TRIAL OP JOHN H. 8UB&ATT. 13
which the court is to pass upon in order to ascertaia whether the jaiy has been
duly selected or not, and any questions which are directed to that point must
be considered as relevant and admissible.
Mr. PiBRRBPONT. I will then proceed with one or two other questions :
Q. You have just read over your affidavit ?
A. Yes, sir.
Q. What do you say to the court as to its being true ?
A. It is true.
Re-examined.
By Mr. Bradlby :
Q. It is said in that affidavit that you have searched for the list made out by
you. State to* the court whether, in point of fact, you did make oat a list and
pat it away for preservation.
A. I think I did. I divided the wards up on sheets of foolscap paper, divid-
ing the city as near as I possibly could with regard to the number of men. I
then took the names and put them on separate slips of paper and rolled them up.
Q. You are distinct you did make out such a list, and have searched for it,
bat cannot find it ?
A. Yes, sir ; t am. I might be able to find it in the course of time.
By Mr. Pibrrbpont :
Q. You say '* paper or papers," in this affidavit ; you made memoranda, did
yoal
A. Yes, sir ; that is what they were, on separate pieces of paper, the first ward
on one paper, and the second warA on the other, and so on.
Q. These separate pieces of paper, then, you did not show to these other gen-
tlemen!
A. No, sir ; the names were all rolled up.
Q. It has not been your habit to preserve these papers ?
A. We have laid them aside in the office, some of them ; we have generally
done so.
Q. Some of them, you say 1
A. All of them ; we have generally made them out, and laid them aside.
Q. You do not know what you have done with this last list?
A. We laid it aside somewhere among a lot of old papers.
Mr. Bradley. I beg leave to suggest that this motion has taken us entirely
by surprise. We relied upon the uniform practice in the execution of this law
from the time of its passage, and therefore have had no reason or disposition to
look into the mode in which the jury has been selected in this particular case —
moieespecially as more than one person has been on trial for his life during this
term of the court, and before this very jury. I do not know as there were any
convictions in capital cases, but there were certainly capital trials.
The District Attorney. Only one — Cleaver.
Mr. Bradley. The district attorney says ouly one ; one is enough at any
»te. I repeat that this motion takes us entirely by surprise. We came pre-
pred to try the case. And with regard to the motion before us, a grave question
lies at the bottom of it: whether or not, if your honor should be of opinion with
4e counsel on the other side that the jurors have not been properly summoned,
*e can go to trial unless the objection comes from the defendant, he having
A Ml knowledge of the facts ; and whether a verdict against him, under such
ciitnmstances, would not be just as conclusive as if the jury had been regularly
^Ptnnelled. I am well aware that the current of decisions is the other way,
>na that where life is concerned there can be no waver on the part of the accused.
There are, however, decisions, and very well-reasoned ones, supporting the right
<^the court to proceed to try, convict, and execute, where the prisoner, knowing
^ the facts, makes no objection. It is with this view that I ask your honor to
14 TRIAL OP JOHN H. 8UBBATT.
indulge us for time to look into these two questions : First, the construction of
the law ; and, second, as to the effect which may be produced in the event of
your ruling the question of law against us, and in favor of the United States ;
that is, whether it is a thing possible for the accused to submit his case to the
jury empannelled, and which has served during this term.
Mr. PiBRREPONT. If your honor please, any indulgence that the counsel shall
ask, that your honor thinks reasonable, we are, of course, disposed not to inter-
fere with in the least. I have no doubt this motion has taken them by surprise,
and I see by the remarks which the counsel (Mr. Bradley) has already made,
that he is quite familiar with the law on this subject, and I think, therefore, is
entirely apprised of the fact that if this jury has been illegally empanelled, that
if he should stipulate, if all his associates should stipulate, and the prisoner
should stipulate to abide by the verdict, the verdict would, notwithstanding, be
utterly worthless. You cannot, for grave reasons of public policy, permit any ille-
gal conviction for the taking of the life of one of our citizens to stand a moment
if the verdict has not been rendered strictly in accordance with law, and no stipu-
lation of counsel or prisoner can relieve it. I believe if anything is settled lately,
that is well settled. My learned friend suggests that he has seen some cases in
which there were some decisions looking the other way ; 1 do not know what he
alludes to. ^
Mr. Bkadlbv. I beg my learned friend to understand that 1 do not know the
fact that such a conviction is void in law ; if I did, I certainly would not stand
up here and controvert it. What the legal conclusion may be, is the very thing
I ask time to look into.
Mr. PiERREPONT. Certainly; I did not say that the learned counsel "knows" it.
Mr. Bradlbv. You did say so.
Mr. PiERREPONT. From the remarks that the learned gentleman did make, I
inferred that he knew it. In my view of it — and I certainly am in some mea-
sure responsible for the advice I may give here to the government — I should
not hesitate in saying publicly as well as privately, that a verdict of a jury
thus illegally empannelled would be altogether worthless, and that i}0 man could
be executed upon it, or suffer any punishment.
Mr. Bradley. I would like to know what is to be done with all those who
have been already executed.
Mr. PiERREPONT. I am in no way responsible for what has been done.
The District Attorney. If your honor please, my friend (Mr. Bradley)
needn't trouble himself about that.
Mr. Bradley. I will only say that it has been the uniform practice since the
passage of the act, and you have hung a dozen men under it.
The District Attorney. Oh, no, not quite so many as that. And I will
only say that it is never too late to do good. I don't want to hang any more
in that way.
Mr. Bradley. If your honor please, the construction of this law is a very
nice question, and although our friends on the other side are entirely confident
about it, I will simply say that what has fallen from them thus far, has not
satisfied our minds, and we therefore ask until to-moiTow morning to look into
that question. It, sir, presents a very grave question, whether or not for the
last five years, every man who has been hung has been hung illegally.
The District Attorney. It is proper for me to state that we are willing to
grant any indulgence which the counsel may ask, and which the court thinks
proper.
The Court. We will give you, then, Mr. Bradley, until to-morrow morning
at 10 o'clock.
Thereupon the court adjourned.
TEIAL OF JOHN H. SURBATT, 15
June 11, 1867.
The court met at 1 0 o'clock a. m.
Mr. Bradley. When the motion waa sabmitted yesterday, on the part of the
prosecution, to quash the array of the panel in this case, we were taken by
surprise, as we well might have been, under the circumstances. As far as I can
ascertain no such motion was ever made in this court. The particular form of
the motion did not attract my attention at the time, but upon looking at it since,
I find that it is not only novel, but that there is no precedent for it either in
English or American practice. In order to present to the court a case on which
the court can decide whether the jury has been properly summoned, returned, or
impanelled, the motion must state facts and not conclusions of law. I will
read it to your honor, and beg leave to call the attention of our brethren on the
other side, to a fatal defect in the form of the motion, in order that they may so
remedy it as to place the question in a form in which it may be reviewed here-
after, if it should become necessary. The motion is in these words :
In the Supreme Court of the District of Columbia. The United States vs»
John H. Surratt. Indictment, murder.
"And now, at this day, to wit, on the 10th day of June, 1867, came the United
States and the said John H. Surratt, by their respective attorneys, and the
jurors of the jury empanelled and summoned also come, and thereupon the said
United States, by their attorneys, challenged the array \)f the said panel, be-
cause he saith that the said jurors composing said panel were not drawn accord
iDg to law, and that the names from which said jurors were drawn were not
drawn according to law ; whereupon he prays for judgment, and that said panel
may be quashed."
Now, if the court please, the facts upon which these propositions rest, must
be stated in the motion. They are traversable, and upon them an issue may
be made. When the facts are presented, the opposite party may either take
issue or demur.
I rise, therefore, for the purpose of calling the attention of my brethren on
the Either side to the form of their proceeding, and to suggest to them that it be
BO amended as to set out the facts upon which they rely for the court to pass
npon the facts as set forth in the motion or plea. I have looked into the English
precedents and those of this country, and I think I state the law with precision,
that the facts upon which they rely, showing the grounds upon which they
appeal to the judgment of the court to set aside the panel, must bo stated upon
record. And that is not supplied by the affidavit, for we could neither take
bsue upon the affidavit which they have presented, nor could we demur ; and
it is the right of the opposite party to demur or take issue, as they see fit. I
refer your honor to I Archibold*s Criminal Practice, p. 545, on this point. On
p. 547, is this note.
** The challenge to the array must be in writing. It may be in this form :
• And now, on this day, to wit : on , come as well the aforesaid J. S. as the
aforesaid J. N., by their respective attorneys, and the jurors of the jury impan-
nelled, being summoned, also come ; and thereupon, the said J. N. challengeth the
array of the said panel, because, he saith, [here set forth the matter of challenge
with certainty and precision,] and this he is ready to verify. Wherefore, he
prayeth judgment, and that the said panel may be quashed.' '|
Then follows a long note, in which this whole case is presented, showing that
it is absolutely necessary in order to make an issue upon which the court may
determine whether the proceedings have been strictly in accordance with the law
or not, that the facts shall be set forth in the motion.
Mr. PiBBRBPONT. The learned district attorney is not now in court, but will
be here presently. I quite agree with my learned friend that the facts must be
brought before the court upon which they are to determine the question. It is
upon the facta and conclusions of law that the question is to be determined.
The only point now is as to the mode by which the facts shall be brought before
16 TRIAL OF JOHN H. SURRATT.
your honor. Thore is no doubt but in an ordinary suit at law, where the object
is to get it in such shape that a demurrer will lie, the practice is to set out, as my
friend has suggested, the evidence for the purpose of raising a demurrer. Whether
the practice in this court is such that your honor will require the evidence to be
set out in the motion, or brought before you by affidavit, as has been done in
this case, I have no knowledge, nor do I deem it of importance except to con-
form to the practice which is usual in such cases. I do not very well see ho#
it can make any possible difference whether the affidavit is attached to the motion
or be not pinned to it.
Mr. Bradley. My suggestion was that the substance of the affidavit should
be incorporated in the motion. I say that the facts relied upon must be incor-
porated into the motion to enable us to take issue.
Mr. PiERREPONT. It is Certainly the same thing; it makes no difference how
you put the affidavit in, whether you write it over again or attach this paper to
the motion. It is the substance, not the form, to which we arc directing the at-
tention of the court ; and there is no difficulty in getting at what your honor may
think is the proper form. I quite agree that the substance is the fact, and the
fact is to be ascertained in such mode as your honor may think is the correct
mode. As I have said, I am not familiar with the practice of this court. The
assistant district attorney is present, and may perhaps suggest what it is in this
respect. I dimply wish that whatever is the proper and usual mode of getting
at the fact shall be followed.
Mr. Wilson. Tour honor will observe that the form given in the authority
quoted by Mr. Bradley has been followed in this case. The requirement there
is that the matter of challenge should be set forth with certainty and precision.
That is the requirement, and if there is any other requirement more specific than
that, I have been unable to find it. If this motion does set forth the matter of
challenge with certainty and precision, it complies with the requirements laid
down in the text-books. It is, however, a question for your honor to passupouf
and if, upon inspection of this motion, your honor is of opinion it does not specify
with certainty the cause of challenge, we will, of course, in accordance with 'the
suggestion of your honor, amend it.
Mr. BiUDLEV. If my brethren will show me how we can plead or take issue
upon the motion in its present form, they will relieve me of the difficulty under
which I am laboring. If they will show me how we can plcdd to an affidavit
annexed to a motion, I shall be equally pleased ; but until they show me some
form of plea by which we can put in issue the fact upon which the law is to
rest, I must say that under the practice of any court that I ever heard of this is
a novel proceeding to me. To aver that a thing is contrary to law and fail to
state the facts upon which the motion, or application, or plea, or whatever it
may be called, is based, is, I confess, a novel proceeding to me.
Mr. PiERREPONT. I do uot understand the motion to be a plea in any sense
in which that term is used. I understand the motion to be addressed to the dis-
cretion and judgment of the court, and when the facts on the motion are brought
before the Court on the one side, they may be denied on the other. If one side
uses an affidavit as a means of enlightening your honor as to the facts upon
which tiiey base the motion, the other side may use an affidavit for the purpose
of showing that the facts relied upon are not true ; or they may, if the court so
direct, bring witnesses for that purpose. I do not understand that in the motion,
before the court the forms of pleading are to be complied with in the same man-
ner as in an action at law. I am not aware that such is the practice.
Mr. Bradley. I wish to ask my learned friend whether, in such a proceeding
as this, the opposite party is entitled to an issue on the question presented?
Mr. Pierrepont. Undoubtedly.
Mr. Bradley. Then I ask how can they have an issue upon a motion of this
sort which was that a proceeding is not in accordance with law, without setting
out the facts upon which the motion is based ?
TRIAL OP JOHN H. 8UREATT. 17
Mr. PiBRRBPONT. Precisely as in all other cases. The motion is made, and
the affidavit upon which it is based is read. The other side presents an issue
by presenting other affidavits or other evidence and then the law arises upon
the facts as presented.
Mr. Bradlbv. I mean in an issne to be tried by triers.
Mr. PiBRRBPONT. I mean an issue to be tried by the court.
llie Court. It would seem from this note of Mr. Woodeson's that there is'
quite as much formality to be observed in motions of this sort as in the pleadings
in any cause. I read from the note referred to by Mr. Bradley in first Archibold,
" As Sir James Burrow has not given the record at length, I have set down the
form of these challenges (which is not of every day's experience) from my man-
uscript precedents, and thereupon the said S. B. prayeth judgment of the panel
aforesaid, because he says that the said panel was arrayed and made by J. C.
tnd J. D., sheriffs of the said city of Chester, and that the said J. C.and J. D.
were at the time of the making of the panel aforesaid, and continually, from
thenceforth, hitherto have been, and still are citizens and freemen of the said
eitr of Chester ; and this the said S. B. is ready to verify ; wherefore he prays
judgment, and that the panel aforesaid may be quashed. And the said P. E.
and H. H. say that the matter in the aforesaid challenge to the array of the
uid panel contained, is not sufficient in law to quash the array of the said
panel ; and this they are ready to verify ; wherefore they pray judgment, and
that the array of the panel may be allowed by the court here. And the said
8. saith, for that he nath above alleged a sufficient challenge to quash the
irniy of the panel aforesaid, which he is ready to verify, which said challenge
the said P. and H. do not, nor doth either of them, deny, nor to the same in
any wise answer, but do, and each of them doth, altogether refuse to admit that
arerment; he and the said S. prays judgment, and that the array of that panel
may be quashed."
It would look to me, if we are to be guided by these precedents, as if the
fiiets and not the law should be set out in this motion, and the conclusions
of law are to be drawn from the facts as set forth.
Mr. Bradlbv. Now, if your honor please, as we are exceedingly anxious
on both sides to bring this case to a hearing as soon as possible, I submit to the
gentlemen on the other side, that they incorporate substantially the facts set
forth in the affidavit of Mr. Douglass in their motion, and then we will be
resdj to proceed. ♦
Mr. PiBRRBPONT. We are quite ready to do that.
Mr. Bradlbv. I have been informed by Mr. Douglass that he desires to
amend a single statement in his affidavit. I do not know that it is in any im-
portant particular, but I suggest that he have permission to make his statement
to the court now.
The Court. He may do so.
Mr. 8. £. Douglass then came into court and made the following statement:
I wish merely to say that when I spoke of drawing the jurors from the box,
it was always done in presence of Mr. Meigs, the clerk of the court.
The Court. You state in your affidavit which was filed yesterday morning
ind made the ground for challengiug the array, among other things, that this
jury DOW in court was drawn by the clerk of Georgetown, without stating that it
vasdrawn in presence of anybody ; and you now wish to interpolate there that it
was done by him in the presence of the clerk of the supreme court of this district.
Witness. Yes, sir, and in the presence of the clerk of the levy court of
the county and of myself as register of this city.
Mr. Bradlbv. I will also state that I have looked at the original record and
Att the head of the certificate is in the handwriting of Return J. Meigs, and
[ thst the names of the jurors are in the handwriting of Mr. Williams, a clerk
2
18 TRIAL OP JOHN H. SUBRATT.
in hi8 office, and that it is signed by Mr. Douglass as register, and by the clerk
of Georgetown, and the clerk of the levy court. I suggest, if there be no ob-
jection, that the correction now made by Mr. Douglass be entered in the affidavit.
Mr. PiERREPONT. We have no objection.
The Court. It will be so entered.
Mr. Bradley. The motion now having assumed a shape in which we can
plead, we are ready to do so.
Mr. Bradley thereupon entered the following plea :
United States, ^
vs, > In the criminal court of the District of Columbia, No. —
John H. Surratt. 3
And thereupon the defendant saith the said motion is bad in law and in sub-
stance. The facts stated do not constitute any ground in law for a challenge
of the array.
BRADLEY & MERRICK,
For Defendant.
Mr. PiERREPONT. "We join in- the demurrer.
Mr. Merrick. When the motion was made on yesterday, the high respect
that I entertained for the learned counsel upon the other side induced me to ap-
prehend that it involved a question of some difficulty, especially in view of the
assurance, which I was exceedingly glad to hear given by the United States dis-
trict attorney, that the motion was not for the purpose of delay, but upon an exam-
ination of the question my apprehension of any difficulty involved in it as a
legal proposition was speedily removed, and I beg to suggest to my learned
brothers upon the other side, and your honor, that if there is anything in the
motion, and it should prevail as a valid objection to a petit jury, the same ob-
jection will apply to the grand jury that found the indictment, and on the deci-
sion of your honor, should it be to sustain the ground of challenge to the petit
jury, we may deem it expedient to change the plea of not guilty and to plead
specially to the indictment. It is therefore, in point of substance, as to the re-
sult not so very material to the prisoner, for the success of the motion of my
learned friends on the other side may put him at large. It is somewhat
remarkable that the objection now presented to the regularity of the manner in
which this jury was drawn should be presented for the first time at this late day.
Since the pass^e of the act of 1862, as Mr. Douglass tells us, the jurors have
been uniformly drawn, and the lists uniformly prepared in the same manner in
which the list of this jury was prepared, and in the same manner this jury was
drawn ; and if this jury is illegally constituted, and not authorized to return a
verdict, your honor has been dealing somewhat inconsiderately with the lives
and liberties of the citizens of this country ever since 1863, when your honor
came upon the bench. You have hung one man and sentenced scores to the
penitentiary, and you are now to be gratified with the intelligence that in all
these acts in the taking of human life you were guilty of simply killing, and in
all these adjudications inflicting the penalty of incarceration you have pronounced
upon offenders, you are guilty of participation in the act of false imprisonment
A pleasing reflection to your honor, and a matter for serious consideration for the
jurors who participated with you in these crimes. But I apprehend there is no
such result following from a just construction of this statute, and I shall very
briefly submit to your honor the views that have suggested themselves to me.
The first question that arises is upon the construction of the statute. My
learned brothers upon the other side contend that the selection of the names that
are to be deposited in the jury box is a duty devolving by the law upon the
register of Washington city, the clerk of Georgetown, and the clerk of the levy
court of the county, and that this duty must be performed by all three conjointly,
and that a part of this duty having been performed by one of the three, the duty
TRIAL OF JOHN H. 8URBATT. 19
was illegally performed, and the conclusion of that duty are null and void.
Tour honor will observe that the first section of the act provides : "That it shall
be the duty of the register of Washington city, and of the respective clerks of
the city of Georgetown and the levy court of Washington county, in the District
of Columbia, within one month after the passage of this act, and on or before the
first day of February in each year thereafter, to make a list of such of the white
male citizens, tax-payers, residing within their respective jurisdictions as they
shall judge best qualified to serve as jurors in the courts of said District."
This requirement of the law is addressed to these officials respectively. The
register of Washington is to make a list of such of the white male citizens, tax-
payers, as he thinks best qualified to serve as jurors. So far as the making of the
list itself in the first instance is concerned, it cannot be pretended that any part
of the duty in regard to it has devolved upon any one else than the register as
to the list of Washington, the clerk of Georgetown as to the list for Georgetown,
and the clerk of the levy court as to the list for the county, and in the prepara-
tion of that list there is a discretionary power left with these several officers to
be exercised by each severally, independent of the other within the territory
over which the law requires him to perform his duty. The register of Wash-
ington has to select from the white male citizens of Washington, tax-payers, such
persons as he may think in his judgment best qualified. Your honor will ob-
serve that the law does not say that he shall select all that are qualified. It
does not say what proportion of those that are qualified he shall select. It does
not say how many shall constitute his list, but it provides that he shall make a
Hst of those he deems best qualified ; and in the execution of the duty imposed
by this law he is required to leave out some, because he cannot select those who
are best qualified, without leaving out those who are more indifferently quali-
fied. So with the clerk of Georgetown — so with the clerk of the levy court. '
In this first section, then, there is no pretence, there is no ground to maintain that
the duty imposed upon these officers is to be performed by them conjointly. * The
second section provides "that the officers aforesaid shall select from the list of
the raster of Washington the names of four hundred persons ; from that of the clerk
of Georgetown eighty persons, and from that of the clerk of the levy court forty
persons, which proportion after the year 1863 may be varied from year to year,"
fee My learned brethren, while they will concede, and must concede the posi-
tion advanced in regard to the meaning of the first section, contend that the
second section, however, imposed the duty of selecting from the list prepared in
obedience to the first section upon the three officers conjointly. They admit,
and must admit, that each officer must prepare his own list, but they say that
after the list is so prepared by each officer severally, the three are to meet
together and conjointly select the number required, from the list so prepared. I
sobmit to your honor that the same construction which applies to the first section
must also apply to the second ; that the clear and distinct language of the first,
aids in relieving the apparent obscurity of the second, and the several duty
designated to be performed by these officers severally in the first section, re-
mains a several duty to be performed by them severally under the second section.
Each officer has to select from the list he prepare the number of names he is re-
quired to have drawn from each list, and I submit to your honor, that the
other officers — the clerks of Georgetown and of the levy court — have nothing
to do with the selection to be made from the list prepared by the register of
Washington. The law has selected three officers of three distinct corporations ;
the corporations of Washington, Georgetown, and the county are distinct.
The law has selected these three officers, and these three distinct corporations,
to perform certain duties within their corporate limits, and relating to the cor-
porators. It has imposed the duty upon these officers because they are pre-
nuned to know better than anybody else of the qualifications and character of
tke eorporators among whom they live, and it would be a most remarkable
20 TRIAL OF JOHN H. SURRATT.
thing if the law should require an officer of the corporation of Washington to
enter into the corporation of Georgetown and perform a duty of this character
in regard to the corporators of Georgetown. It would be a remarkable thing if
the law should require an officer of the corporation of Washington, about
whom and about whose official position there is nothing to justify the presumption
that he is acquainted with the qualifications and character of the citizens of the^
county, to go into the county and make from among its citizens a selection of a
portion of them who are to perform the high and responsible duties of jurors ;
but it would be in perfect accordance with reason, common sense, justice, and
law, to require the clerk of the levy court of Washington county, who lives in
the county, is familiar with the corporators of the county, to select from among
those corporators, the persons who are to perform this delicate office, and it is to
be presumed from the relation in which these officers stand, that one can in no
way aid or assist the other. The reason why they are brought together is, that
in the particular of the jury, the jury is to constitue the jury for the three cor-
porations, but in order that it should be wisely and judiciously selected, it is to
DC selected by the men best competent to make it, most likely to be familiar with
the people among whom the selection is required to be made — by the officer of
that particular corporation.
But, your honor, it is not necessary that in this case I should take this ex-
treme position in the construction of the law. My second position is, that the
three officers, if the construction of my learned brethren be correct, did con-
lointly perform the duty of selecting from these lists. On yesterday, when it
became apparent from the statement of Mr. Douglass, made in addition to his
affidavit, that that affidavit was not entirely accurate, and that when the juror
names were deposited in the jury box, all three of these officers were present,
I objected to the further inquiry as to what particular judgment was exercised
by t\Hi one or the other in the selection of the names so deposited. My learned
brethren on the other side suggested to me that the argument or view I then ex-
pressed was applicable to the main question, and should be expressed as an
argument upon the main question, and not upon the question of evidence. What-
ever might be the view of this statute when that fact was developed, it struck me
instantly that my learned brethren on the other side would see at once there
was no ground upon which to rest their motion. 1 supposed, although I had
never examined the question at all, that when Mr. Douglass stated these three
officers were present at the time, my learned brethren on the other side had been
misinformed by the affidavit which they had, and that when the fact was de-
veloped that all these officers were present acting together in depositing names
in the jury box, it was information that would satisfy them that there was no
ground for their motion. My reason for so supposing was this familiar principle,
that where three individuals are required by law to perform a quasi judicial
duty, or a discretionary duty, and the duty is performed, you cannot go back
beyond the performance of the duty to inquire how far it was performed by each
of the three. Your inquiry is stopped the very instant the fact is developed
that the three were present ^nd participated in the duty imposed upon them.
How far it appears of what share he had, how far the judgment of one guided
the other, and what passed in consultation, are not matters of inquiry by your
honor, lliis board, if board you call it, have rights as well as courts. They
arc entitled to legal presumption as well as the court, and it is the first time in
my professional experience, that I have ever seen the attempt made to inquire
how far one of the several parties aided in the performance of the duty that was
imposed upon them conjointly when it was shown that all were present* The
statement of the question is so plain that argument would only tend to obscure.
I suggest to your honor, as a third consideration, that we are not now inquiring
whether these parties (these officers of the law) performed their duty strictly in
accordance with requirements of the law, bat we are inquiring bow far failure
TRUL OP JOHN H. SURRATT. 21
to comply with tbeee requirements vitiates what was done — two very distinct
questions ; and I maintain that even if this officer failed to comply in every par-
ticular with the strict requirements of the law, and yet the duty was performed,
that while they may be liable for a failure to obey and observe the law, the act
they have done is a valid and binding act. The statute nowhere declares that
the panel shall be void. The statute nowhere declares that their action shall be
\mgatory. It directs certain things to be done, and is what is known to the
law aa a directory statute. As your honor is aware, the courts have gone to a
great extent in construing these directory requirements of the law, with a view
to uphold what may have been done under the law. I refer the court to Sedg-
wick on Statutory Law, from page 371 to page 377, for a very full collectiun
of cases bearing upon this point. I cannot gather from the case decided
any fixed general principle, sufficiently clear and distinct, and state to your
honor without reference to special cases, other than this, that whenever the court
can construe the law as directory, whenever they can uphold the validity of
what is done under the law, although not done in conformity to the law, it will
construe the statute to be directory. And it has upheld the validity of what
has been done, even while punishing the officer for a failure to comply with the
mandates of the law. I read from page 377.
** By a paving act, commissioners were empowered to enter into contracts for the
work, provided that no contract should be made for any longer term than three
jears ; and the act then went on to declare that ten days' notice of proposals
should be given ; that the contracts should specify the work, the price, and the
time of completion, and should be signed by at least three of the commissioner:?,
and that copies should be kept. It was held that the proviso as to the term of
the contract was imperative, but that all the other clauses were merely direc-
tory, (Tindal, C. J., saying : " The act says that the contract shall be signed
by the commissioners, &c. ; it does not say that they shall be void unless so
signed,") and that a contract was good without them. Here it is obvious that
provisions inserted by the legislature for the protection of tax-payers, were nul-
lified by a judicial decision.
* ♦ * * * *
" In Massachusetts, where a statute required the assessors to assess a tax within
thirty days after the vote of the tax being certified to them, it was held that the
naming the time for the assessment was to be considered as directory to the as
Bessors, and not as a limitation of their authority. So in New York, where a
school- tax was voted at a meeting of which no notice was given as required by
statute, and afterwards levied, the act was held to be directory merely, and the
tax to be well laid. A statute requiring a tax to be assessed, and the tax-list
therefore to be made out by the trustees, and a proper warrant attached thereto
within thirty days after the district meeting in which the tax shall have been
voted, is merely directory as to time.
* * ♦ • * •
" Indeed, the rule has been carried so far as to hold where a statute directed
the vote of the common council of the city of New York to be taken by ayes
and nays, that the provision is merely directory. And, again, it has been de-
cided that the provision of a statute requiring inspectors of corporate elections
to take an oath is only directory. The rule has also been applied to popular
Sections ; an election has been held valid, though the inspectors were sworn
not on the Bible but on some other book, though they kept open the polls after
the time fixed by law, and committed other minor irregularities."
This, then, will show to your honor the disposition of the courts to uphold the
validity of what may have been done by an officer even where he has not strictly
complied with the reauirements of the law. The requirements of every law are
maQdatory and should be obeyed, and he who disregards them must disregard
them at hla peril. But where the ^w itself does not declare that to be void which
22 TRIAL OP JOHN H. SURRATT.
he is required to do, and has not done, in stnct accordance with the requirements
of the statute, and the doing of the thing affects other parties and the public
interests. The law will uphold the act as valid, but may punish the officer as
derelict in his duty.
The general principle that statutory provisions may, in certain cases, be treated
as purely directory has been recognized in all the States." In regard to capital
trials for murder in Michigan, a statute, requiring a circuit judge to assign a day '
for the trial, has been held clearly directory so far as time is concerned.*'
In this case the statute imperatively required that a day should be assigned for
the trial of the capital cases ; the statute was made in favor of the prisoner, in
favor of life, and yet the courts uphold the action of one of its officers acting
thus in a manifest disregard of this charitable and mandatory requirement of the
law.
But I do not deem it necessary, as I stated in regard to the first position, to
maintain the third to the extent to which I have carried it. The second, as I
have indicated to the court, is conclusive upon this subject. These men were
present doing the act, and you cannot inquire into what part was done by one
and what part by another. It is their act. The list of jurors was placed in the
box by them, and the certfiicate is signed by three men. They have therefore
ratified by their own signature what was done; they have, by their subsequent
act, declared that this box was made up according to law. Now I ' ask my
learned brethren upon the other side to answer me this question : Suppose three
men were to meet together in conclave — suppose the clerk of Georgetown and of
the levy court had said to Mr. Douglass, take your list and make out from
your list these men from Washington that ought to go in this box, and he had
done it, and conjointly with the others deposited the names in the box, would
your honor come into court and say these men had not performed the duties
charged upon them as quasi o^cifil duties? Unquestionably not. But, say ray
brethren upon the other side, he made out no list. He did make a list, call it hy
what name you please. He made out four hundred names of those he regarded
as best qualified in the city of Washington ; he was not required to make any
more. The number of individuals who should be upon that list or who should
compose it were matters exclusively within his own discretion, and when he
made out four hundred names it was an exercise of his discretion in the selection
of men best qualified to serve as jurors.
But I am consuming time unnecessarily, for the case is definitely settled by
the judges of England in their unanimous opinion in the famous case of Daniel
O'Connell. I refer to 11 Clark and Finnelly, page 167. Daniel O'Connell
being indicted of high crimes and misdemeanors, applied his challenge to the
array of jurors, and your honor will perceive that the refusal to grant him the ben-
efit of the challenge to this array was a very hard and possibly a very harsh one.
The challenge of the defendant, Daniel O'Oonnell, was as follows . " And
the said Daniel 0*Connell thereupon, in his own proper person, challenges the
array of the said panel, because, he says, that at the special sessions heretofore
holden in and for the county of the city of Dublin on the 14th of November,
1843, before the right honorable Frederick Shaw, recorder of the said city, for
the purpose of examining the list of jurors for the said city for the now current
year 1844, pursuant to the statutable enactments in such case made and pro-
vided, the clerks of the peace in and for the said city duly laid before the re-
corder divers, to wit : Twenty lists theretofore duly furnished to the clerks of
the peace by the several collectors of grand jury cess within the city, in that be-
half duly authorized to make such lists, containing or purporting to contain a
true list of every man residing within their respective districts."
Now, your honor, the law under which this challenge was interposed, and ac-
cording to the requirements by which it was expected to be made available, pro-
Tided the clerks of the peace for the city of Dublin should lay before the re-
TRIAL OP JOHN H. 8URBATT. 23
eorder certain lists which were to be furnished to the clerks of the peace by the
several collectors of the grand jury cess. The lists were to be made by the col-
lectors of persons qualified to act as jurors. The collectors having made out the
fist were to furnish them to the clerks of the peace, the clerks of the peace were
to furnish them to the recorder, the recorder was to certify to the qualification,
and from these lists the jury book was to be made out, and from the jury book
the sheriff was to collect the panel. This was the law. Now the challenge set
forth what I have read to your honor, and goes on to say :
" And that the said several lists respectively were at the special sessions duly
corrected, allowed, and signed by the said recorder, pursuant, &c. ; and that
the several persons whose names are hereinafter mentioned were then and there
adjudged by the recorder to have the qualifications hereinafter named, and that
the names of the several persons were then and there contained in the said seve-
ral lists so corrected, allowed, and signed as aforesaid."
Your honor will observe yon have now got your list from the collectors of the
grand jury cess to 'the clerks of the peace, from the clerks of the peace to
the recorder, and your lists are certified and approved by the recorder. He
goes on :
*'But that the recorder did not, as by the said statutable enactments is directed,
eanse to be made out from the said several last-mentioned lists one general list
eontainihg the names of all persons whose qualifications had been so allowed,
arranged according to rank and property ; nor did the recorder thereupon, or at
all, deliver such general list containing such names to the clerks of the peace, to
be fairly copied by the said clerks of the peace in the same order as by the said
statutable enactments is directed, but on the contrary thereof omitted so to do ;
and that a certain paper writing, purporting to be a general list, purporting to
be made out from such several lists so corrected, allowed, and signed as afore-
said, was illegally and fraudulently made out by some person or persons un-
known ; and that the said paper writing, purporting to be such general list as
aforesaid, did not contain the names of all th(; persons whose qualifications had
been allowed upon the correcting, allowing, and signing of said lists as aforesaid
by the recorder, but omitted the nanies of divers, to wit, fifty -nine persons."
Following your list then from the collector of the grand jury cess and
clerks of the peace to the recorder, and the recorder having, as your honor ob-
serves, approved and ratified these lists, it then appears that the recorder failed
to make out a general list and make a copy of the list which he had approved,
but that some unknown party made out a list omitting fifty-nine names that
were upon the lists approved by the recorder, and that this had been done
fraudulently and illegally.
"Ajid the said Daniel O'Connell further says that the several persons whose
names were so omitted from the fraudulent paper writing, purporting to be the
general list, were, at the time of the return of the collectors' lists, and at the
time of the special sessions, and still are severally residents within the said city,
and were at the several times, and now are, duly qualified to be, and should
and ought to have been placed upon the general list ; and that from the fraudu-
lent paper writing purporting to be such general list as aforesaid, a certain book,
purporting to be the jurors' book of the said city for the current calendar year,
1844, was made up and framed."
Your honor will see that the jury book was formed from this fraudulent list,
and that on that ground the challenge was interposed. The demurrer was filed
eonceding all the foots— conceding that the lists made out had not been made up by
the recorder, that it had been made up by some person unknown, that it had been
fraudulently made up for this case, and that from the very list thus fraudulently
aadenp the jurors' list had been taken, and the jury had been summoned by the
iheriff. The court below sustained the demurrer. The case went up to the House
of Lords, aad the lords called upon the judges of England for their counsel. The
24 TRIAL OF JOHN H. 8URBATT.
judges of England were unanimous in favor of the demurrer, and the lords
co-operated with them. The opinion held by Chief Justice D. Tindal, giving
the unanimous judgment on the part of the judges will afford to your honor an
easy and clear solution of the difficulty presented to you here, while the lord
chancellor in giving his opinion coincides with Chief Justice Tindal, and eluci-
dates the subject, as I think your honor will say, to your entire satisfaction. I beg
leave to read from a portion of Chief Justice Tindal's opinion. On page 232
your honor will find the question propounded by the lords and the judges. The
question is this :
"Is there any sufficient ground for reversing the judgment on account of the
judgments of the court overruling and disallowing the challenges to the array,
or any or either of them, or of the matters stated in such challenges ?"
On page 247 Chief Justice Tindal in his opinion says :
" The answer to the sixth question (ante, p. 232) will depend upon the princi-
ple upon which the law allows a challenge to the array of a jury. The only
ground upon which the challenge to the array is allowed by the English law, is
the unindifferency or default of the sheriff. But no want of indifferency in the
sheriff, nor any default in him or his officers was assigned for the cause of chal-
lenge upon this occasion.
" The array of the panel is challenged in this case upon the ground that the
general list from which the jurors' book is made up, had not been completed in
every respect in conformity with the requisites of the statutes, but that, on the
contrary, the names of fifty-nine persons duly qualified to serve on the jury for
the county of the city of Dublin, were omitted from the general list, and
from the special jurors' book of the said county, but the challenge contains no
accusation against the sheriff, or any of his subordinate officers. The challenge
by each of the defendants alleges in deed, " that a list, purporting to be a gen-
eral list, was illegally and fraudulently made out, by some person or per-
sons unknown ;" and the challenge by Mr. Steele states further, *' that the
names were left out for the purpose and with the intent of prejudicing the said
Thomas Steele in this cause, by some person or persons unknown;" but neither
in the one case nor in the other is the most distant suggestion that the sheriff is
in fault. The shei-iff therefore being neither unindifferent nor in default, the
principle upon which the challenge to the array is given by law, does not apply
to the present case. The statute has, in fact, taken from the sheriff that duty
of selecting jurymen which the ancient law imposed upon him, and has substi-
tuted instead a new machinery in the hands of certain officers, by whom the list
is to be prepared for the sheriff's use."
I beg here in this connection to call your honor's attention to one particular
feature of this opinion of the learned judge, reasoning upon the doctrine that
the only cause of challenge is unindifferency or default on the part of the sheriff.
My learned brother on the other side will see that the sheriff has nothing to do
with the selection of the jurymen. The statute having taken from the sheriff
that duty anciently imposed upon him, and placed it in the hands of other offi-
cers by whom the list is to be prepared for the sheriff^s use ; and yet, although
it appeared that the list prepared by these officers was substituted for another
improperly and fraudulently; still the challenge was not allowed, because
the only ground of challenge must be unindifferency or default on the part
of the sheriff. Here we have a similar substitute of machinery, the statute
having taken from the marshal the selection of tlie jury and placed it in
the custody of other officers in a manner very much analogous to the law of
England. There the assessors were to furnish the list to the clerks of the peace,
the clerks of the peace to the recorder, the recorder to make out a clear list
the jury book, and a copy of that list to be placed in the hands of the sheriff.
Here the clerk of Georgetown, of the levy court, and the register of Wash-
ington are to prepare certain names and put them in a box, which box is to be
TRIAL OF JOHN H. SURBATT. 25
placed in cbarge of the clerk of the supreme court 16 be sealed up. From that box
the jurors are to be drawn, and return is to be certified hy the clerk of the crim-
iEial court. The sheriff has nothing to do with all this. There the challenge is
made because the jury book was not prepared in conformity to law ; here be-
cause the jury box was not prepared as alleged in strict conformity to the law.
The two stand precisely alike so far as the preparation of the jury book there
and the jury box here is concerned. The chief justice goes on :
** If the sheriff, when the jurors' book was furnished to him, had acted im-
properly in selecting the names of the jury from the book, such misconduct
would have been a good cause of challenge to ihe array ; but that which is
really complained of is, that the material of the book out of which the jury is
selected by the sheriff, and for which the sheriff is not responsible, has been im-
properly composed. It is not, therefore, a ground of challenge to the array ;
and further, it is manifest that no object or advantage could have been gained
if the challenge had been allowed, for if the challenge had been allowed, the
jury process woidd have been directed to some other officer, who would have
been obliged to choose his jury out of the very same special jurors* book as
that which the sheriff had acted on, for no other was in existence. The same
objection might again be made to the jury panel secondly returned, and so totics
quotiety so that the granting of this challenge would, in effect, amount to the
preventing the case from being brought to trial at all. The very same difficulty
might occur in England, if, through accident, carelessness, or design, a single
jury list, directed to be returned by the overseers of any parish within the
county, were not handed over to the clerk of the peace, or if a single name
should have been omitted in any list actually delivered to the clerk of the peace.
The jury book must necessarily in either case be deficiently made up. But if
deficiency were allowed to be a ground of challenge to the array, the business
of every assize in the kingdom might effectually be stopped. That there must
be some mode of relief for an injury occasioned by such non-observance of the
directions of an act of Parliament, is undeniable ; but the only question before
US is, whether it is the ground of challenge to the array ? and we all agree in
thmking it is not, and therefore we answer this question in the negative.''
I will not detain the court by reading from the opinion -of the learned lord
chancellor, for he pursues the same course of reasoning as that pursued by
Chief Justice Tinaal, and coincides in the opinion I have read. He says :
•* If the sheriff is unindifferent, to use the legal expression, if he is not equal
between the parties, that is a ground of challenge to the array. If he is guilty
of any default in returning the jury, that also is a ground for this species of
challenge. Those are the only grounds of challenge to the array. They are
of a personal nature, and are confined to the sheriff or other officer, whoever he
may oe, by whom the jury is returned."
I do not mean to say there is anything peculiar in the character of the sher-
iff that makes him specially liable in the particular mentioned in this opinion,
but it i» the officer who makes return that must be guilty of unindiffereucy or
de&nlt ; but the opinion goes to the extent that a challenge of the array is only
proper where there is a default of the officer who makes the return of the par-
ticalar jury, and not of the officer who selects the particular jury. There
ought to be, and there is a remedy where the jury book or the jury box has not
* been properly prepared, but it is not a remedy by challenging the array. That
ranedy applies only where the officer making the return of the particular petit
JQiy has been guilty in selecting that particular jury.
I respectfully submit, therefore, that if this case in England is law, there is
no difficult question before this court. 'And if it is not, there is no difficult
Cion, because, as I have said, those men were present in the discharge of
duty.
And I further state, that if cogdizant of the fact that there is a defect in this
tllll :t .■:z5 h.
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•.:V:'e wj--:brr this case
will be tried tor mwtv d.ivs or nur.v ve.irs.
Mr- PiKRREPO.NT. M.IV
L^leasv" V .KIT \\M\ T :
irr.ed and eminent
ra> s suppose them
eoontel ari*e in a solemn, ra.iniur :.^ .^i^dross ::;o c.-r:. I a>
t^> ' ■" ■" have uo doub: ::;;i: the uwiiuv. sr.d or.::'*:tr»: gi uileinan who
hft* jR*i taken his seat is no: only sinocn . but i.irr.es: iu :he exireme. in his
dt«tn^ lo prerftnl the sucot^ss of this lu^v.vxi. The I ^rc -f :b:\i sincerity will
«p{i4n<nt wiiru I qnoio the beirinsiir.;: of l-is sj tx-oh He s.ays : " If this
icMi pic^vail. then the jn*.uid jviry iihioh found :l.:s ::-.dic:c:ec: was illegal,
pill* uiy tiieiu at lar^\"
V I ^upjH%*t\ my loanu\l friend c.\rao here :.^ pu: his cMvut at large,
't Mi^BKicK. By llio wrdiol of a jury.
* i*isiiRKPf<AT. If not. why is ho hoix ? I oo:o»:vo :h;\: he is not here for
piitwi? tlian to put his client a: l,\^:^^ 1: ::.o r.'. :: v.: :i;a: wo have made,
ff«vall,k]8 cliont x* at lar^' : and yet Re talks .in tumes; hour to your hon-
to luitOTOtt douy thi» motion, and thus prvveu: his client being at large.
TRIAL OP JOHN H. 8URRATT. 27
Let us see what all tliis means. It is a very extraordinary spectacle, truly,
to have a lawyer, earnest in the defence of his client, rising and telling your
honor, that if the very thing we ask is done his client is free ; and yet exerting
himself with an earnestness and an ingenuity which is commendable, to prevent
his client from gaining his liberty. It is something new in the administration
of justice. 1 fancy, your honor, that I have a right to infer either that he is
not sincere in believing that the success of this motion would set his client at
large, or else he will have to meet this extraordinary result, that he does not
wish to have his client at large.
Mr. Merrick. Will the learned counsel allow me a moment ? I merely wish
to say in reply to the first suggestion, which he is now eliminating, that I desire
my client to be set at large by the verdict of a jury. My judgment is that if
this motion prevail, this indictment falls ; but the blood-honnds of the law may
still track him for another indictment. I desire him to go forth from this court-
room free from accusation and protected for the future.
Mr. PiBRRBPONT. Well, then, vour honor, the reason is that he wants him
tried by a jury, and that is exactly what we want. I called your honor's at-
tention yesterday to the section of the statute now before me, that whenever
there is a failure from any cause with regard to a jury, the marshal shall summon
good and lawful men under this law to exercise that high function ; and we
yesterday proposed, in order that no delay might be had, that the marshal should
proceed to summon a jury, and if they choose to say so, we will without another
word say, let the marshal proceed, under your honor's direction, to subpoDna a
jury and biing them into this court to try this case. They will discover before
we progress much further, that the United States are as zealous, as earn-
est, and as eager, to try this cause as the other side ; and they will discover
before it is throup^h that the public mind will be set right with regard to a great
many subjects about which there have been such active, numerous, and un-
founded reports. Since I have been here in this city for these past few days,
has it been circulated in nearly all the journals of this country, that the United
States dared not bring forward the diary found upon the murderer of the Presi-
dent, because that diary would prove things they did not want to have known.
All these things will be proved to be false, and all the papers, about the sup-
pression of which so much has been said, will be exhibited here on the trial
of this case. We are anxious that it should be proceeded with at once. It
has likewise been circulated through all the public journals, that after the
former convictions, when an eflTort was made to go to the President for pardon,
men active here at the seat of government prevented any attempt being made,
or the President being even reached for the purpose of seeing whether he would
not exercise clemency ; whereas, the truth, and the truth of record which will
be presented in this court, is that all this matter was brought before the Presi-
dent and presented to a full Cabinet meeting where it was thoroughly discussed ;
and after such discussion, condemnation and execution received not only the
sanction of the President but that of every member of his Cabinet. This and
a thousand other of these false stories will be all set at rest forever in the pro-
gress of this trial ; and the gentlemen may feel assured that not only are we
ready but that we are desirous of proceeding at once with the case.
If your honor please, it is inconceivable to the human mind that mortal man
can be placed in a more solemn position than in coming before a court and a
jury where a fellow mm is to bo tried for his life ft)r the murder of another.
More than ordinarily solemn is this great occasion. On the 14th of April, 1865,
a crime was committed that shocked the whole civilized world ; a crime against
Ijuman life ; a crime against the laws ; and a crime against our beloved govern-
o«nt. Men have suffered death for that crime, and one, who is now the prisoner
tt the bar, by the grand jury of your District, has been found to have been en-
S>ged in that great crime. He is here to be tried. We hope he will be tried
28 TRIAL OF JOHN H SURRATT.
and in a way that is decent and becoming, witb all the solemnities and with all the
forms of law; that he will be tried justly and fairly; and we desire that the
jury who shall sit to try him shall be a jury brought here accorJing to all the
forms of law, so that when they shall render their verdict, whether that verdict
be acquittal or condemnation, this whole country and the entire civilized world,
who will read that verdict will know and feel that the man has been tried fairly,
that he has been tried justly, that he has been tried by a judge of high moral
character and great legal learning, that he has been defended by able counsel,
and that the verdict, for him or against him, has been pronounced by honest
jurors who are brought here in all respects according to tne law.
This motion is made for the purpose that when this trial shall take place, it
shall be in such a way that all men everywhere shall see it has been such a trial
as the occasion rcauires, that it shall not be a mockery and a sham, and that the
prisoner shall not be tried by jurors who are not legal triers, but by jurors that
are brought here under the laws of the United States, fit and proper men to try
this case as the law directs.
My learned friend while making the assertion to your honor that the preva-
lence of our motion would set his client at large, at the same time urges yoiu:
honor to deny this motion, and says that we cannot look into the acts of this
jury, nor into the statutes which direct how a jury shall be empanelled or how
they shall be selected, and cites a case from England, which I shall presently
call to your attention, in relation to the sheriff of England. Permit me to say
that in looking sit your laws, I discover that the sheriff has no more to do with
this jury than the clerk of the Senate of the United States. Neither the sheriff,
uor the marshal occupying the place of sheriff, has any responsible duty in re-
lation to the empanelling of this jury. Now I call your attention to the law,
and I submit to your honor that when a man is to be tried for his life, if the
verdict is to be of any validity, he must be tried according to the law. In this
country and in England from which we derive our notions of liberty, ever has
the law been jealous of human life, and so jealous that I believe it to be a well-
settled principle of law that no stipulation of counsel and no stipulation of the
prisoner ever could allow him to be tried by twelve men and convicted and ex-
ecuted upon such a verdict. The law of public policy is that the man who is
to be tried for his life shall be tried in all respects according to law ; that the
judge who tries him shall sit according to the law ; and that the witnesses shall
be sworn and testify according to the rules of law ; and the jurors who are to
bring in their judgment upon such a man are to be selected in the way that the
law directs ; and if selected otherwise the verdict is good for nothing. Let us
see what the statute says about it — the statute under which these jurors have
any power whatever to try this prisoner. Save for this statute these jurors have
no more right to sit in judgment than jurors from the city of New York or from
the city of London. What does the statute say ? Let me read it :
" Be it enacted hy the Senate and House of Representatives of the United
States of America in (Jongress assembled. That it shall be the duty of the regis-
ter of Washington city and of the respective clerks of the city of Georgetown and
the levy court of Washington county, in the District of Columbia, within one
month after the passage of this act, and on or before the first day of February
in each year thereafter, to make a list of such of the white male citizens, tax-
payers, residing within their respective jurisdictions, as they shall judge best
qualified to serve as jurors in the courts of the said District."
Now what is required by this law in the very first section? That the
jurors shall be white male citizens, tax- payers, of this District, otherwise
they cannot be jurors. Now let me ask my learned friend if he had come
into this court and discovered that every juryman sitting in these seats was a
negro, and he had made the motion we have now made, and I had risen and
said to him, " You cannot set aside this panel because you have heard the evi-
TRIAL OF JOHN H. SURRATT. 29
dence here of these men who selected it, and you cannot go hehind what they
lay ahout it." "What would my learned friend say to the argument ? Suppose
I took his own ingenious and excellent argument and turned it against himself,
what would he say to it? Would he think it a good argument if every man
who sat there was a negro? Would he not turn me to this statute and say " of
the white male citizens," and then turn to your honor and say, " Arc these white
male citizens, every man of whom is a woolly-hoaded African ? [Laughter.]
He cannot meet that suggestion ; and the case is precisely parallel to the one at har.
Mr. Merrick. If my learned friend will allow me to ask him a question
Mr. PiERREPONT. Any.
Mr. Merrick. Does the learned gentleman include in his motion challenging
this array any ohjection to the personal qualification of these jurors ?
Mr. PiERREPONT. I most assuredly do.
'^Ir. Merrick. I was not aware of it.
Mr. PiERREPONT. They are just as much disqualified as though they were
negroes. The statute says they shall be "white;" and the statute says they
shall he "tax-payers;" and the statute says they shall reside within this Dis-
trict. We find they are not a jury of tax-payers, and they are not a jury of
negroes ; but they might just as well have been tax-payers and negroes, for on
inquiry of my learned friend, the district attorney, I am informed that you have
in your District negroes who are tax-payers. If these, then, had been tax-paying
negroes, they would have been just as well qualified as white non-tax-payers,
and there is no getting rid of it.
Let us see what further the statute says on this subject. I am only in the
beginning of it. Those are the men that the law says are to be selected as
jurors. I repeat, let us see what further it says. And they may put in " the
names of such qualified persons as were on the list the previous year, but who
did not serve as jurors ; and the lists thus made of the register and clerks afore-
said shall be kept by them respectively and be delivered to their successors in
office." These three men shall make their lists of tax-payers who arc white
in these three districts. What shall they do when they get together ? The
officers aforesaid shall select from the list of the register of Washington city the
names of four hundred persons. That is what these three men arc to do. This
board, as my learned adversary calls .it, and very justly, are to select first from
the list of the rrgister of the city of Washington four hundred names. Let us
start there. Did they select from the register's list of the city of Washington
four hundred names ? He tells you that they never selected one name, and that
he never had there a list, first or last. When I asked him on the cross-exam-
ination here yesterday, after they had brought him here, " Did the others even
see the rolls of the names that you put into the box?" He said "No."
"Did you see any that they put in ?" He said "No." And you will find
it so appears on the record.
What was the object of this law ? The register of the city of Washington
was to bring the list of tax- payers whom he deemed qualified. The clerk of
the levy court was to bring his list of tax-payers whom he judged to be quali-
fied. The clerk of Georgetown was to bring his list of tax-payers whom he
thought to be 'qualified. And this board, thus together, was to select first from
the register's list of the city of Washington the names of four hundred persons,
from that of the clerk of Georgetown eighty, and from that of the clerk of the
levy court forty. Did these three men select from the list of the register of
Washington four hundred ? They never selected a man, and that evidence is
perfect and complete. Did the three select from the list of the clerk of George-
town eighty persons ? Not a man. Did this board select from the list of the
derk of the levy court forty ? Not one. Now, there was some reason for
this law, was there not t The object of it was to have a fair jury. This
statute was passed by the Oongress of the United States for the govern-
80 TRIAL OP JOHN H. 8UBBATT.
ment of this District, in which it was known when the statate was passed
that there were persons of a variety of views in relation to the great public
Questions. It was known that in this city there were a great many men who
did not sympathize with the government. There were others who were its bitter
enemies. There were others who were zealously in its favor. There were the
strongest abolitionists on the one hand, and on the other those who believed in
and favored slavery. Every grade and class of political opinion and of moral
view and religious notion existed in this city when this statute was passed, as
it does to-day, and Congress was anxious that jurors should be so selected that
when men came to be tried in this District they should feel that they were to
haye a jury without prejudice, and a jury in the selection of which more than
one man had been engaged. That they could have a jury, after the list had been
prepared, of the kind of men that the statute required, the strict provisions of
which I have just read. Now, I appeal to your honor if, under the evidence
before the court on the demurrer which admits it, one single requisite has been
complied with. I ask your honor, suppose that these men had selected anv
sort of men they had pleased, men who were not residents, and, as I before saij,
men who were negroes, would that have been a good jiury ? Suppose the clerk
of the Senate and the chairman of the Judiciary Committee had met together to
select jurors and put their names in the box, and then afterwards the clerk had
drawn them out, would that have been a good selection of the jury ? It would
have been just as good as this. It would have been just as strict a com-
pliance with the law as this is. Why have any law about it ? Why not say,
" Let the register and these men go and do as they please about it." The law
was made surely for something.
Let us see what further provisions they made to guard against any fraud or
any partiality in relation to the selection of a jury. " The names selected from
said litits shall be written on separate and similar pieces of paper, which shall
be so folded or rolled up that the names cannot be seen, and placed in a box."
Were the names written on these pieces of paper taken from those lists ? Not
a name selected by this board was taken from these lists ; but these three dif-
ferent persons selected, and neither ever let the other know, as the evidence
shows, what he had selected. Not a man knew any except such as were his
own ; and the register of this city did not even know his own, for his own clerk,
as he says himself, rolled up the names ctnd put them in. *'And they shall be
placed in the box to be provided by the register and the clerks aforesaid, which
box shall be sealed, and after being thoroughly shaken shall be delivered to the
clerk of the circuit court of Washington county for safe keeping." Let us see
whether that part of the law, under this evidence, was complied with. The
box was not sealed, as the evidence shows. It was not sealed or delivered to
the clerk. That is a very important provision. If the box was delivered to the
clerk unsealed, why, your honor knows, there might be a clerk dishonest — I do
not wish to be understood as making any such suggestion here, on the contrary,
very far from it — but there might be a clerk or a deputy clerk, or some one
connected with the office, who might see fit to stuff that box with other names
for other motives ; and, therefore, to provide against this, it is enacted that this
box, by these men who compose this board, shall be sealed and thoroughly
shaken, and after it is thus sealed and thoroughly shaken it shall be deliver^
to the clerk of the circuit court. The evidence is that when this box was de-
livered to the clerk of the circuit court it was unsealed. Can it be said and
urged to your honor that these men, intrusted with the performance of this
high duty, can properly disregard every one of these requirements ? I submit
to yoiur honor, and will prove by this evidence before I am through, that from
the first step they took to the last they did so disregard them. Not one single
act did they do that was not in violation of the statute.
Next, " that the said register and clerks and the clerk of the circuit court
TRIAL OF JOHN H. SURRATT. 31
iliall, at least ten days before the commencement of each term of the circuit or
of the criminal court, meet at the City Hall of Washington city, and then and
there the clerk of the circuit court shall publicly break the seal of said box, and
proceed to draw therefrom the names of so many persons as are required."
There is another requisition : That these men, that this board of three, should
thus select the jurors and put their names in a box, seal it up and deliver it to
the clerk, shaken and sealed ; and a very important provision it is, as your honor
will see. Suppose, for any bad motive — no such motive do I attribute in this
case, bnt make the supposition simply as an illustration of the point of law that
I wish to bring to the attention of the court — suppose, from any motive of par-
tiality or interest, one of these gentlemen forming the board saw fit, in drawjng
from the box, to draw names which were in his hand instead of the names in the
box. The law provides that he shall not have that bpportunity ; that he shall
not draw them, but that the clerk of this court shall draw the names. Now,
what is the evidence ? It is that one of this board, the clerk of Georgetown,
drew the names, and not the clerk of this court. The clerk of Georgetown had
no more right to draw these names than my learned friend, the district attorney ;
and drawing them, he was doing that which made it an illegal draft of this jury,
directly contrary to the law. Law is not supposed to be made in folly, or in
nonsense. Congress makes this solemn provision that these names shall be
drawn by the clerk, who is not one of the board, but a totally different man,
after the box containing the names shall have been delivered to him, shaken and
sealed ; yet one of this board draws the jury. That is the evidence before us,
and uncontradicted.
Let us sec what further provisions are made in relation to this matter. It was
evidently anticipated by the Congress which passed this law that a contingency
might arise in which it might become necessary to set aside the array and order
a new panel, and, in order to meet that contingency, they have made provision
for it in the section which I will now read ; and I will just say that my learned
friend, in reading from this case in England, read what the learned judge there
said in relation to their law ; that their law did not allow them to go behind the
sheriflF in relation to the matter, and he gave as one good reason why the sheriff's
selection should not be set aside, that there was no other earthly mode prepared
in England by which they could proceed to the trial of any case. My learned
friend read it from the report, some portions of which I shall have occasion, in a
moment or two, to cite to your honor.
Mr. Bradlbv. Will you be kind enough to repeat the remark just made ? I
was otherwise engaged at the moment, and did not hear it.
Mr. PiBRREPONT. I say that one of the reasons that the Lord Chief Justice
Tindal gave as a good- reason for setting aside the selection of jurors in England
was, that if that motion were granted, there would be no mode by which they^
could get a jury to proceed with the trial of causes.
Mr. Bradley. On, yes; I now understand you.
Mr. PiBRREPONT. Now, in our case no such reason can be assigned. The
statute does contemplate just such an emergency, and has made a provision for
it It provides, in section five, that •* if a jury be required for the circuit court,
the twenty-six persons whose names shall first be drawn shall constitute the jury
for that term ; and the names of the persons drawn as aforesaid shall not be
again placed in such box for a period of two years. If any person whose name
ia so drawn shall have died, or has removed from the District, or has become
otherwise disabled from serving as a juror, the said register and clerks shall
draw from the box the name of another person who shall serve instead ; and after
the requisite number of jurors shall have been so drawn, the said box shall be
•gain sealed and delivered to the clerk of the circuit court, as aforesaid."
Immediately following that provision is section 7th, which says that " in case
either of the officers whose duty it is to make out the lists aforesaid shall ne-
32 TRIAL OF JOHN H. SUBBATT.
gleet or refuse to act, or in case either of them shall be interested in any action
or proceeding pending in the said circuit or criminal court, the chief judge of the
circuit court shall appoint a fit and proper person to discharge the jury instead;
and if the persons selected aa jurors do not attend, the court may order the
marshal to summon other respectable tax payers, possessing the other legal
gualifirations, to supply the deficiency ; but if at any time there should not be,
by reason of challenge or otherwise, a sufficient number of jurors to make up the
panel, the court shall order the marshal to summon as many talesmen as are
necessary for that purpose."
Now, if the persons selected as jurors do not attend, the court may order the
marshal to summon other respectable — what? "Other respectable tax-payers,
possessing the other legal qualifications, to supply the deficiency." In the first
section it states what the legal qualifications are — " to be tax-payers, and to pos-
sess the other qualifications." The seventh section provides that, in case of
failure from any cause, the court shall direct the marshal to summon as tales-
men other respectable tax-payers, possessing the other legal requisites ; and the
marshal, under the direction of the court, shall thus prepa«e the list of other re-
spectjible tax-payers, &c. Congress seemed, therefore, determined that in no
event should justice fail, and that no such reason could be given by your honor
as was given by Chief Justice Tindal, that there could be no other mode of pro-
ceeding.
The thing is complete ; there is no difficulty whatever in the matter. Con-
gress has provided, first, that it shall be done in a particular way ; that a par-
ticular kind of persons, and those only, shall be the jurors, and that they shall
be selected in a certain manner and drawn in a certain manner ; and then, to
avoid the possibility of a failure of justice, they say that, if from challenging or
from any other cause, a sufficient number may not be had, the court shall order
the marshal to make the selections from the proper persons having the legal
qualifications, so that all these questions will lie quite outside of this case, and
power in the court is complete. There is no cause or reason for delay ; it may
be done now and forthwith, and the sooner it is done the better. I take it for
granted that my learned friends want it to be done soon. They want to go on
with the case. We are as anxious as they to go on with it.
There is one argument which was made by the gentleman in the early part
of his remarks to whjch 1 desire to call to the attention of the court, and that is
this, that if this jury is an illegal jury, why, then, other men have been convicted
here illegally. He urged it with much earnestness, that that was a reason, if
you had been going on in an illegal way, why you should continue to do so.
I think that, on reflection, my learned friend will not consider that argument
sound. If you have been doing illegal or immoral or any other wrong acts, the
time to stop is when you first make the discovery, and not to say, ** We will
continue it, because we have always done it." Your honor knows when we
made some attempt to civilize the Indians, and an Indian chief was reproved
for murdering his enemies, and was told that it was unchristian and wrong, he
said he had always killed his enemies, and insisted that, therefore, he should
still kill them. An immoral woman of the Sandwich islands, too, whom our
missionaries attempted to convert to virtue after marriage, urged as a reason for
continuing her mode of life, that she had always been so doing as she was then.
My learned friend read from page 247, of Clark & Fin nelly's Reports. Let
us see what that case was. The question came up for this judge to answer;
and the answer he gave to the sixth question was — in England they have a
statute upon the subject it seems
Mr BuADLBV. 1 beg your pardon.
Mr. PiBRRKPONT. They have a statute in England to which he alludes. I
am coming to that in a moment.
TRUL OP JOHN H, 8URRATT. 33
Mr. Merrick. I thought you stated that there wae a statute in regard to the
grounds upon which a challenge would be allowed.
Mr. PiBRRRPONT. Oh, no, sir; the statute upon which this was based. The
answer of the learned jadge was : " the only ground upon which the array is
allowed by the English law is the unindifftrency or default of the sheriff. But
no want of indifference in the sheriff, nor any default in him or his officers, was
assigned for the cause of the challenge upon this occasion.*'
That was the end of the case. It ought to have been the end of the case.
This word " unindifferency," which I see the learned judge uses here, is cer-
tainly a new word to me — I never saw it before. I suppose, however, it is a
good one.
Mr. MhRRicK It is habitually used in that connection throughout the law.
Mr. PiBRRKPO.NT. I say I suppose it is a good word; but it is not one that
I am accustomed to. Of course, we understand what it means. Now, the
only ground to the challenge of the array that is allowed by the English law is
the " unindifferency or default of the sheriff." Tliat being so, it does not need
much comment. 1 be only ground upon which the law allowed a challenge was not
pretended to exist, as the learned judge said. lht;refore there was no necessity
for spending a great deal of time upon a case like that. Of course, that would
end the case. It did not need so much learning or argument as the learned judge
and the lord chancellor seem to have given to it f but from the notoriety of the
case, and from the magnitude of the subject involved, which was then made a
political affair, they saw fit to give it a great deal of consideration, and gave aa
reasons why they should not undertake to set aside this panel the fact that they
had no possible way of having justice administered, no other mode of getting a
jury. It was sot pretended in the challenge, as the judge said, that the legal
grouud and the only legal ground upon which there could be any complaint pre-
dicated existed. Therefore, of course, the motion was denied. And in this case,
if there is no ground for it, of course the motion will be denied. If there is
^ound for it, I take it the motion will be granted. In this case, we act under
the laws of the United States directly — under a statute. It is a principle of
the common law, well known and understood by all lawyers ^d all men, per-
haps, that it lies in the discretion of the judge to construe the law ; it is not
only in his discretion but his duty to see that the law over which he is called
to preside is properly administered. Your honor is placed in your high posi-
tion in this court for the purpose of giving construction to this statute ; for the
purpose of seeing that the laws of Congress relating to this District and this
court over which you preside are executed. This is not an unmeaning statute.
The reasons of it are apparent upon its face, and when Congress passed it it was
understood that this statute was to be obeyed, and that when a man was to be
tried for his life, or when he was to be tried for any felony, or any lesser crime
or misdemeanor, or for anything else, the jurors who were to try him were
to be selected hy law, and that no irregularity, informality, or defect in that se-
lection should be passed lightly over by the judge who presides. But it is his
daty to see that the law is administered, if it be called to his notice ; and if
the statute has never before been called to your notice, of course your honor has
not passed upon it. As I learn from my associate, the district attorney, and as
1 infer from what the learned counsel on the other side have said, this question
haa never here arisen before. Of course, therefore, it is no man's fault; it has
not been thought of. These men proceeded in their own way. They thought
they would t^ke their way to get a jury, instead of the way of the law. They
chose to tread in their own path ; to be a law unto themselves ; to say," We will
fix up a jury as we please," reckless of the law. It is your honor's duty to see
^t a jury is selected in the way that the law directs, and that is all we ask.
Ve are ready now to proceed to trial ; we are desirous that the trial shall be
34 TRIAL OP JOHN H. SURRATT.
proceeded with, and we ask and urge that this other provision of the statute hy
which your honor is empowered to direct the marshal to summon a jury for the
purpose of trying the cause shall be enforced, and that a jury shall be empan-
elled, in order that we may be permitted to proceed to trial at the earliest day that
such jury can be selected. And we see no reason why it may not be to-morrow
as well as any distant day, so that any so-called reason of delay is not a reason ;
so that any alleged reason of the failure of justice is a false reason. The statute
has provided for all these things, and it lies in your honor to enforce it ; and
when the facts have been presented before the court ; when it is shown that the
statute is not complied with, and when it appears that the law has provided that
a jury may be selected by your honor's direction in case of previous failure, I,
for one, cannot for a moment imagine that your honor will not direct that the law
be complied with, or that you will allow subordinates to exercise their own whims
or notions, to set aside the solemn statute of the law.
This is a case such as your honor has never tried, such as your honor never
will again try ; such as has never been before tried in this country, and such,
we hope, as never will be tried again. It is the first civil trial for the murder of
a President of the United States ; the first civil trial for the great crime of an
attempt to destroy the government of the United States; one of that class
of crimes which shock the whole world. Many people who despaired of the
republic have doubts whether you can, before a civil tribunal, obtain a just and
honest trial, a fair and impartial verdict in a great case like this. Therefore
this case possesses a weight and magnitude such as Furely no other case in
this country ever had. It is in fact not dimply the trial of a man for his life;
it is in a measure a trial whether we can get a jury legally empanelled to try
assassins and murderers of the President of the United States, who attempted
to throw our country into confusion and anarchy, and who designed all the hor-
rors to follow their act which the human mind can conceive. It is to be seen
whether such trial can be fair, whether justice can be done. All of us who have
read anything of history or who have reflected upon human nature, know that
civil society will protect itself. They know, if the civil courts and the verdicts
of juries cannot administer justice, that society, as in France and in other coun-
tries where the necessity has arisen, will be driven to take refuge in the gloomy
despotism of military power. God deliver us from that ! we want to show
before our countrymen and before the world, that an honest jury of this District
will give an honest verdict ; that we can have a fair trial before an impartial
court ; and we believe that when the jury thus selected are brought together to
try the cause, they will give a verdict with which our countrymen will be satis-
fied— and that is all we want.
Mr. Bradley. If your honor please, I know no case in which it has been my
fortune to be engaged heretofore in which I rose to discuss a question of law
with deeper interest than I feel now. The temptation is very great to be led away
from the true question submitted to your honor for your decision, and it is ex-
ceedingly difficult to resist following the course which has been pursued upon
the other side by discussing, not questions of law, but by presenting considera-
tions to the court which should have no influence upon any judicial mind.
We are told that a jury is to be empanelled to try the assassin of the Presi-
dent. It would have been better to have said him who has been charged with
being concerned in that monstrous crime.
Mr. PiBRRBPONT. Excuse me; I think my learned friend could not have
heard all the language I used. I said, as found by the grand jury ^
Mr. Bradley. That observation escaped my attention. There are, if the court
please, other inducements which are hard to resist, that lead me to make some
commentaries upon the course pursued by gentlemen on the other side ; but time
k too precious, for I desire to have this discussion closed in time to receive the
decision of your honor to-day, that if this motion is overruled and the demurrer
TRIAL OP JOHN H. 8URRATT. 35
Biutoined we may at once proceed to impanel a jury, and if it is not and there is
any other movement of delay on the part of the prosecution, that we may be pre-
pared to meet every dilatory process as soon as it arises. We are in earnest*
we deshne to have this party tried now, we desire to have him tried by a jury
amni txceptione majores, against whom not a breath has been uttered by any
counsel who has addressed the court since the commencement of these proceed-
ings, by a jury empanelled according t^ the form of law which has prevailed
since the passage of the act under which it is empanelled — a jury above challenge
for qualification — a jury conceded to have been selected by honest men with
honest purposes, without reference to this trial — a jury standing, if a jury can
stand, impartial in view of such an event as has been referred to— a jury standing
impartial between the government and the accused. We desire that the inten-
tion of the act of Congress shall be carried out, which was to take from the
marshal of this District the power to select jurors ; we desire, if possible, to
avoid the selection which may be made of talesmen, for we know too well the
condition of society here ; we desire to have such a juiy as has been impanelled
ander the circumstances in which this jury has been summoned, admitted to be
free from all exception.
But again I take issue with my learned friend on the other side. We desire
to have a jury that can try the case now ; for if we do not try it now, no jury
under that statute can be summoned or returned until next February. The
condition in which the marshal is to be called in to summon talesmen cannot
arise, because there has been no panel returned, and therefore no panel can be
exhausted, and until a panel has been returned and has been exhausted
by some process of law, the authority of the marshal to summon tales-
men 16 out of the question. The predicate is that a panel shall have been ex-
hausted. If there is no panel, there is no predicate, and if that is no predicate,
the marshal cannot summon. We are sincere, if your honor please, in endea-
Torin? to bring this question to an issue now. Our brethren claim and we
accord to them the same sincerity. We may have done them injustice in sup-
posing this was interposed for delay ; we may have done them injustice in sup-
posing that at this late stage of the term and after so many years of experience
this process of selecting a jury was first discovered to be wrong. I hope we did.
Bat there is a graver view of this question which has not been touched by the
counsel on the other side, nor by my learned brother who preceded me. We
have been told that it is an obligation of common law that the courts shall en-
force statutory provisions ; but there is a higher and a holier duty, that courts shall
not make law. The counsel on the other side seek by this motion to prevail upon
your honor to make a law. We have no statute upon the subject of challenging
the array. We stand upon the common law of England, the common law of the
State of Maryland, the common law engrafted upon the laws of the District of
Colombia, the common law which must stand unless repealed or modified by
the Btatate, common law which is as binding upon the judgment and conscience
of this court as though it were statute law. Now, sir, what is that common
hiw t Can any man, lawyer or not, doubt what that common law is when he
reads or has heard read the case of O'Gonnell and the Queen ? Oan any man
doubt that by the common law of England, the only challenge to the array was
for default in the man charged with the summoning of the jury ? The prepara-
tion of the list of jurors was not cause of challenge. If any case can bring
this case directly to judicial decision, that case of O'Gonnell does. There
was fraud and ille^ity charged directlv upon the party making out the jury
hook, which was admitted on the record as being fraudulent and illegal, and the
courts say in such a case as that there is no such remedy as a challenge of the
vny. They say admit that it sounds harsh and tyrannical : what of that t
It is the law of the land, and they go back to the year books of Edward II and
£dwaid III where it was laid down by Lord Oook that the challenge to the
36 TRIAL OF JOHN H. 8URRATT,
array cannot be allowed, except for partiality in the person summoniug the juiy.
Whether there are other remedies or not is not for me to say. Whether there
are other remedies which in this instance the United States might have pursued
is not for me to say. I say it is laid down by that highest and greatest court of
the present time, a court composed (.f the fifteen judges of England, that by the
common law a challenge to the array can only go to the disqualification of the
officer making the summons and return. No human ingenuity can escape the
conclusion of that case. Argument is vain. It is like buffeting the light waves
against a great rock, it falls back in spray. Theie is the solid basis, the deci-
sion of the fifteen judges of England, the most solid basis upon which we can
rest the principles of our liberty, the common law of England. It comes to us
under that rule thus strict, thus limited, thus defined, hoary with age, baptized
in our own revolution, the common law of England.
Now, for the purposes of this case your honor is asked to make a new common
law. I appeal to your honor to vindicate the common law of England, and to
enforce it.
Now, sir, I pass from that to another consideration. When this question was
proposed yesterday I conceded that the defendant in this case, according to the
current of decisions, could not waive a defect in the empanelling of the jury.
I stated, however, that I had seen two well-reasoned decisions the other way.
I have since then seen four, and, unless the detect appear upon the record of the
case, or unless it shall clearly appear that the party did not know of the dis-
qualification or defects he is as completely concluded as though it were a civil
case, and he had, in form, waived that right the waiver is conclusive, and I refer
my learned brothers upon this point to a case in seventh Wendell — with which
one of them at least, Mr. Pierrepont, is perfectly familiar — ^in which a man in
a capital case moved for a new trial on the ground of irregularity in empanelling
the jury. The case is found on pa^e 421. 1 read from the opinion of the court :
'* The revised statutes provide that a jury for the trial of an indictment shall
be drawn in the same manner as is prescribed by law for the trial of issues
of fact in civil cases, (2 Rev. Stats., 734, 735 ;) and in civil cases where there
IB not a jury empanelled in another cause the statute directs that the ballots
containing all the names of the jurors returned and appearing at such court,
shall be placed together in the same box before any jury shall be drawn there-
from, (2 Rev. Stats., 421, §64.) Here, the ballot containing the name of Smith
not having been placed in the box before the drawing of the jury commenced,
it is said the statute was violated, and the prisoner is entitled to a new trial."
The language is so distinct that no one can fail to understand it, yet the
requirement was departed from in this case, and this a capital case. I read
further from the opinion :
'* We have several times had occasion to consider the effect of an ommission
on the part of the officer whose duty it is to draw and empanel jurors to conform
to the precise regulations prescribed by law in that respect, and we have uui-
formly held that this statute, like many others of a similar character, is to be
considered as directory to the officers merely, and that a neglect to conform to
its provisions will not ftr #e be a sufficient ground for setting aside the verdict
of such jury where the court sees that the party cannot have been prejudiced
by it, (5 Cowan, 289. 7 Id., 232.")
Now, I would like to know how a party would be prejudiced by trying his
case before this jury, but, if your honor please, I can see how he can be preju-
diced by summoning talesmen to supply their places. I read further :
" Th« 69th section of the same act (2d Rev. Stats., 420,) provides that the
clerk of the court shall cause the names of the several persons n^f erred as jurors
by the sheriff, with their respective additions and places of residence, to be
written on several and distinct pieces of paper, each in the same manner, as near
M may be, and so as to resemDle each other as much as possible, and so that
TRIAL OP JOHN H. 8URBATT. 37
the names written thereon sball not be visible. In Cole and Perry, (6 Cowan,
584,) a motion was made to set aside a verdict on the ground that the ballots
containing the names of the jnron were not folded at all, but were put open into
the box, in snch manner that the names might ea^^ilj have been seen by the
person drawing them. On the other hand the affidavit of the clerk who drew
the jnry was produced, stating distinctly that be did not see the names of the
jnry until af^r they were drawn. The motion was denied on the ground that
the statute was directory merely to the officer drawing the ballots, and that the
mistake of the officer in the discharge of his duty, was not a ground for setting
aside the proceedings where no injury to the party complaining was shown or
pretended. The principle of this case is believed to be fully sanctioned by a
great variety of decisions in our own and the English courts."
Again, on page 424, he unes this language :
•* The conclusion from these cases appears to me to be this : that any mere
informality or mist ike of any officer in drawing a jury, or any irregularity or
misconduct in the jurors themselves, will not be a sufficient ground ^r setting
aside a verdict, either in a criminal or civil case, where the court are satisfied
that the party complainiug has not or could not have sustained any injury
from it.*'
Again, on pago 426 :
" The case of Kingvs, Hunt, (4 Bam and Aid., 430,) bears a strong analogy
to the case at bar. That was the case of an information for a libel, before a
special jury. Ten of the special jury attended, and two talesmen were sworn,
and the defendant was convicted. He moved for a new trial on the ground
that the officer had omitted to summon the two special jurymen who had not
attended, and it was contended that it was absolutely necessary that all should
be summoned ; that the act of parlaiment was imperative, for it required all to
be Bommooed, and if two were omitted, so might any other number. But the
eourt unanimously refused the motion, saying that it would be an alarming
principle to establish that a verdict could be set aside because the sheriff had
omitted to summon one jur3rman out of the whole panel ; that applications of
this sort were addressed to the discretion of the court ; that if the officer had
not done his duty he might be punished for it, and if his omission has actually
prodnced prejudice to the party, then the court might, in its discretion, prevent
injustice from being done by granting a new trial. In that case, the omission
had not been shown to have been prejudicial to the defendant and therefore the
motion was refused. This, I apprehend, is the true rule to be collected from all
the cases."
He then reviews the case of The People vs, McKay, which was a capital case,
and in which the defendant was convicted of murder.
*' He was then brought into this court by habeas corpus, and the indictment
and proceedings against him in the court of oyer and terminer, were also re-
turned in obedience to a certiorari, directed for that purpose. Upon the papers
thus before the court, the counsel for the prisoner moved an arrest of judgment
on the ground that no venire had been issued to summon the petit jury, and
it appeared that the venire issued was not under the seal of the court, and that
no official return had been made to it by the sheriff. It was admitted by the
eounael for the people that the case stood precisely as though no venire had
been issued, it having no seal and was, therefore, absolutely void, but they con-
tended that no venire was necessary. The only judgment then was whether
^ judgment could be sustained when the record showed that no venire had
been issned.*'
Judge Spencer says : ** Inasmuch, then, as the venire was necessary at the com-
OMni law, and as the statute yet requires it to be issued, the omission to issue it we
mt eoasider an error apparent on the record, and in such a case, affecting life, we
do not feel ourselves anthorized to dispense with a process required by the
38 TRIAL OF JOHN H. SURRATT.
common law, and also by the statute, although we may not be able to perceive
much use in continuing it." The deci^on proceeded on the ground that the
error was apparent on the record, and the court could not disregard it.
I might refer your honor to other cases equally in point, but these are suffi-
cient for my purposes. I therefore say, if the court please, that there is no
error apparent on the record of the court in this case. There is no error show-
ing any irregularity in making out these listp, in preparing the jury-box, in
opening the jury-box, in di-awing the jurors, there is no error of record, and if
the case should go to trial advertised as the defendant has been by the pro-
ceedings now under consideration, he would be bound by that verdict as eflPect-
ually as if every form of law had been complied with. There is no reason,
then, of public justice; there is no reason of public sentiment, for that has
been invoked ; there is no reason affecting the public at large which could
make a change in this case from the ordinary course of proceedings since the
passage of the act of 18G2 necessary or proper, but there is every inducement
which can operate upon the mind or conscience of the judge to continue this
trial now with this free, unembarrassed, impartial jury, and of not submitting
the defendant to all the disadvantages which the act of. Congress was intended
to remove and subject the defendant to trial by a jury which is denounced by
the act of Congress itself.
Now, if your honor please, a word only as to the construction of this statute.
Mr. PiEBBEPONT. I understood you to argue that in England there was no
statute having any eflPect upon the empanelling of the jury.
Mr. Bradley. I did not say that.
Mr. PiERBEPONT. I so Understood you.
Mr. Bradley. What I stated was, that there is no statute in England
touching the question of a challenge to an array.
Mr. PiBRREPONT. I so Understood you. That is the very point to which I
wish to call your attention. I do so because I supposed you would desire to
answer it. If you will turn to Chitty's Criminal Law, page 537, you will find
challenges are of two kinds :
"Challenges for cause are of two kinds: 1st. To the whole array. 2d. To
individual jurymen. To challenge the array is to except at once to all the
jurors in the panel on account of some original defect iu making the return to
the venire."
Mr. Bradley. Now, if the coui-t please, I am very much obliged to the gen-
tleman for furnishing me with that. Now, if the gentleman will find me a statute
authorizing it, I will be obliged.
Mr. PiERREPOi\T. If you will turn over a page or so you will find it.
Mr. Bradley. I will turn to that directly. That is the common law. If
your honor will turn back to the time of second and third Edwards, to the " Year
books,'' you will find that it was common law then. Now I proceed, sir :
" It is either a principal challenge or for favor, the former of which is founded
on some manifest partiality, and is therefore decisive, while the grounds of the
latter are less certain, and left to the determination of triers in the manner we
shall state hereafter. The legitimate causes of a principal challenge are not
very numerous. Thus, if the sheriff be actually prosecutor, or the party
aggrieved, the an*ay may be challenged, though no objection can be taken in
arrest of judgment. So, if the sheriff bo of actual aifinity to either of the
parties, and the relationship be existing at the time of the return — if he return
any individual at the request of the prosecutor or the defendant, or any person
he believes to be more favorable to one side than to the other — ^if an action of
battery be depending between the sheriff and the defendant, or if the latter
have an action of debt against the former — the array may be quashed on the
presumption of partiality in the offiicer. So, also, if the sheriff, or his bailiff
TRIAL OF JOHN H. SURRATT. 39
who makes tbe retarn, is under the distress of the partj indicted, or indicted, or
has any pecuniary interest in the eveiU, or his counsel, attorney, servant, or arbi-
trator, in the same cause, a priucipsu challenge will be admitted. And, in
general, the same reasons which we have already seen would cause it to be
directed to the coroners or elisors, will also be sufficient to quash the array
when partiality may reasonably be suspected. For all these causes of sus-
picion the king may challenge as well as the defendant."
Every one of these are cases personally affecting the sheriff — every one of
them. Now, we go a step further :
'' Bat besides these, the default of the sheriff will be sometimes a ground of
principal challenge to the array. Thus, if the array be returned by the bailiff
of a franchise, and the sheriff return it as from himself, the return will be bad,
because the party will lose his challenge, though if the sheriff return one from
tbe liberty, it will suffice, and the lord of the franchise will be compelled to
resort to his* action against him."
Was not that the default of the sheriff? Was it not charged against him that
he had failed to discharge his duty, aud summoned the commoners, when he
was bound to summon the knights ? It was the default of tbe sheriff — his per-
sonal misconduct — all of them looking to the default or misconduct of the re-
taming officer.
The Court. Mr. Bradley, does the default direct itself to the summoning
power of the sheriff, or to the selecting power of that officer ?
Mr. Bradlbv. To the summoning power. It refers to both, your honor, but
it must be the act of the sheriff. There is a middle stage, sir, and there is where
we are to go. The sheriff is the only party who is responsible at the common
law, and the statute has failed to provide a remedy unaer the new act of Con-
gress. In England, in the case of O'Connell and the Queen, the statute pro-
vided the mode of selecting and making up the jury book, and the whole duty
of the sheriff was to select jurors out of that book. There was no charge of mis-
conduct against the sheriff, and while all the anterior proceedings were declared
to be illegal, yet the court says, "You charge nothing against the sheriff in
making his return," and unless you do, this form of redress cannot avail you.
The court say they may have a remedy, but the question is as to the form of
the remedy. I need not say to this honorable court that the forms of the law
are as much of the substance of the law as the law itself. The forms of the
remedies to which men resort are just as binding upon them as the highest statu-
tory obligations. Courts are bound by the forms which men adopt and deter-
mine according to the law respecting those forms. My attention is called to the
passage from the opinion of the Chief Justice in that case :
''The sheriff, therefore, being neither unindiffereut nor in default, the prin-
dple upon which the challenge to the array is given by law does not apply to
the present case."
The statute has, in fact, taken from the sheriff that duty of selecting jurymen
which the ancient law imposed upon him, aud has substituted instead a new ma-
ehinery, in the hands of certain officers, by whom the list is to be prepared for
the sheriff's use.
If the sheriff, when the jurors' book was furnished to him, had acted improp
erly in selecting the names of the jury from the book, such misconduct would
liave been a good cause of challenge to the array.
"But that which is really complained of is, that the material of the book out
of which the jury is selected by the sheriff, and for which the sheriff is not re-
sponsible, has been improperly composed. It is not, therefore, a ground of
challenge to the array. And further, it is manifest that no object or advantage
could have been gained if the challenge had been allowed ; for if the challenge
lud been allowed the jury process would have been durected to some other
40 TRIAL OF JOHN H. SURRATT.
oflScer, who would have been obliged to choose his jnry out of the very same
special jurors' book as that which the shariff had acted on, for no other was in
existence. The same objection might again be made to the jury panel secondly
returned, and so toties quoties; so that the granting of this challenge would, in
effect, amount to the preventing the case from being brought to trial at all.
The very same difficulty might occur in England, if, through accident, careless-
ness, or design, a single jury list, directed to be returned by the overseers of
any parish within the county, were not handed over to the clerk of the peace,
or if a single name should have been omitted in any list actually delivered to
the clerk of the peace. The jury book must necessarily, in either case, be de-
ficiently made up. But if such deficiency were allowed to be a ground of chal-
lenge to the array, the business of every assize in the kingdom might effectually
be stopped. That there must be some mode of relief for an injury cocasioned
by such non-observance of the directions of an act of Parliament, is uncdeniable
but the only question before us is, whether it is the ground of challenge to the
array ; and we all agree in thinking it is not, and therefore we answer this
question in the negative."
That is what we complain of.
Mr. PiBRRBPONT. We make no complaint of the sheriff. His duty is simply
ministerial.
Mr. Bradluv. It is not, therefore, a ground of challenge to the array that
they do complain of.
The fifteen judges in England say that is no ground of complaint. The
learned gentlemen here say it is ground of complaint. They say it is true thBt
they make no complaint of the sheriff or marshal, because he is only performing
a ministerial duty, but they go back to the material out of which the list is made,
and the court — the fifteen judges — say that it is not ground of complaint. I
admit that my learned friend on the other side has argued this case with great
ability, but I take the opinion of these fifteen judges in preference to his argu-
ment. These judges, I repeat, say that it is not ground of complaint, while my
learned friend says it is ground of complaint.
Then, if your honor please, if I am right in my reading of these books — that
where the cause of complaint does not exist upon the record, and a man is tried
for his life, he cannot take advantage of that defect after his trial, except upon
clear proof that he was ignorant of the defect at the time of the trial. If I am
right in that, then I say they may proceed to trial at once. The defendant, as
he has the right to do, waives the objection, notwithstanding the great value put
upon the life of an " assassin."
Now, if the court please, I will proceed one step fiirther, and I have already
occupied much more time than I allowed myself. In illustrating this law, my
learned brother says : " Suppose this board —we will call them a board, though they
seem to be a very soft kind of board from what I can understand from the other
side, that they did not discharge their duty any better — suppose this board had
selected a panel of black men, and the panel had come in, all woolly- headed
Africans — well, it would not be agreeable to me I admit — but is there no remedy ?
The remedy is not by challenging the array. That is all I have to say on that
point.
Mh PiBRBEPONT. It would not be the sheriff's fault?
Mr. BuADLBV. It would not be the sheriff's fault, and, therefore, it is not to
challenge the array. But there would soon be found an entire remedy — very
soon. Suppose they are not tax payers, and they challenge the array, and
bring in their evidence to prove the fact that they are not tax-payers. There is
no fault on the part of the marshal, and, therefore, they cannot challenge the
array by any process known to the English and the American common law.
They may have one, and another remedy, but it does not follow that they have
TRIAIr OF JOHN H. SURRATT. 41
the remedy of the challenge of the arraj; and there is the mistake, the fatal
mistake oa the other eide.
But suppose, if year honor please, that this motion prevail, what then ? The
learned ^ntleman, taking np this statnte. reads as follows :
" Sbction 6. "^ * * Bat in a capital case, where the said panel shall have
been exhausted by reason of challenge or otherwise, the court before whom such
capital case is pending may, in its discretion, order additional names to be drawn ;
and if all the names in the box shall have been drawn out and no jury found,
the court may order the marshal to summon talesmen until a jury shall be found."
And, again :
"Sbction 7. * * * And if at any time there should not be, by reason
of challenge or otherwise, a sufficient number of jurors to make up the panel,
the court shall order the marshal to summon as many talesmen as are necessary
for that purpose."
Persons selected as jurors having the same qualifications
Mr. PiBBRBPONT. Tax-payers, and having the other qualifications.
Mr. Bradlby. Yes, sir; but that is not all. I will read the language of the
statute :
" And if the persons selected as jurors do not attend, the court may order the
marshal to summon other respectable tax-payers, possessing the other legal
qualifications, to supply the deficiency."
After reading these sections, the gentleman turns back to the first, and says
" tax-payers " is used there ; ** white male citizens " is also used there. He did
Dot, however, read to your honor the eighth section, which prescribes^ the qualifi-
cations of jurors. What are they ?
** That no person shall be competent to act as a juror unless he be a citizen of
the United States, a resident of the District of Columbia, over twenty-one and
under sixty-five years of age, a good and lawful man who has never been con-
victed of a felony or misdemeanor involving moral turpitude."
Now, the previous sections require that he should be a tax-payer also, and I
ask my learned friend to show me where it says he shall be a '* white man."
Have I not a right then to resist this motion ? Is there not every inducement
which a white man can have to resist it I
Mr. PiBRRBPONT. You will find the term "white male citizen" in the sev-
enth line of the first section.
Mr. Bradlby. Oh ! I know, but that is when the jury is to be listed. When
tbe register of the city of Washington, the clerks of Georgetown, and the
county, are to make out their lists they are limited to white men.
The District Attorn by. Does not that define the description of persons ?
Mr. Bbadlby. Yes ; but when the marshal goes to summon talesmen, how is
it ? The statute simply says ** must be tax-payers, and possess the other legal
qoalifications."
Mr. PiBRRKPONT. The first section speaks of certain qualifications.
Mr. Bradlby. No, sir ; those are exactions, required when the lists are be-
ing made out, not qualifications.
I think I can see where this thing is drifting. It is not delay that is sought,
but they have another motive more powerful than delay. It is to get another
jury in the place of an honest jury already summoned. Why, sir, the gentle-
man talks about the misgivings in the public prints. I do not know that he
bas seen what I hold in my hand, an article from this place denouncing this
jury because sixteen of them are Oatholics, as they say, but there it is — such an
tttlele has been written and published in the New York Herald. I know, toOt
tbat the same article, published yesterday morning, foreshadows the fact that
tbeie gentlemen were to oome into court on the day they did, and make the
identical motion that they have submitted here.
42 TRIAL OF JOHN H. 8UfiBATT«
Mr. Merrick. And the writer states the ground of the motion.
Mr. Bradley. Yes, sir ; states the ground of the motion. It looks to me as
if it came from very near home.
Mr. Pierrepont. What does it state as the ground of the motion ?
Mr. Bradley. There it is, (handing a copy of the New York Herald to Mr.
Pierrepont,) just the same ground precisely as was stated here, that it was not
a lawful panel.
Mr. Pierrepont. Oh ! (laughingly.)
Mr. Bradley. But I do not mean to he led off in this way ; and I beg the
pardon of your honor for being led away from what is really a very important
and grave question, to which we should confine ourselves. I repeat that I do
not mean, if I can help it, to be led into the discussion of any outside matters,
but will endeavor to confine myself to the pure proposition of law.
Now, sir, let us look at this statute. The act of 1862 says : " It shall be the
duty of the register of Washington city, and of the respective clerks of the city of
Georgetown, and the levy court of Washington county, in the District of Colum-
bia, within one month after the passage of this act, and on or before the first
day of February, in each year thereafter, to make a list of such of the white
male citizens, tax-payers, residing within their respective jurisdictions, as they
shall judge best qualified to serve as jurors in the courts of said District, in
which lists may be included, in the discretion of the officer making the same,
the names of such qualified persons as were on the list of the previous year, but
did not serve as jurors, and the lists thus made out by the register and clerks
aforesaid shall be kept by them, respectively, and be delivered over to their
successors in office."
That is the duty of these parties. But when the polls are exhausted, when
the jury box, or the panel is exhausted, drawn from the jury box, then the
marshal shall go out and summon " other respectable tax-payers, possessing the
other legal qualifications, to supply the deficiency.'' And then the very next
clause is : " And if at any time there should not be, by reason of challenge, or
otherwise, a sufficient number of jurors to make up the panel, the court shall
order the marshal to summon as many talesmen as are necessary for that pur-
pose." Then in the next section it is provided : ** That no person shall be
competent to act as a juror unless he be a citizen of the United States, a resident
of the District of Columbia, over twenty -one and under sixty-five years of age,
a good and lawful man, who has never been convicted of a felony," and so on.
Now, sir, I agree that these officers in selecting their jurors are to confine them-
selves to " white male citizens," but I say when that panel is exhausted, aud
the marshal goes out from this court to summon talesmen, he has to summon
citizens of the United States, between twenty-one and sixty-five years of age,
tax-payers, resident in the city of Washington.
Mr. Pierrepont. He is confined to white men.
Mr. Bradley. No, sir.
Mr. PiEUREPOxNT. That is what we hold. That is one of the first qualifica-
tions mentioned. He could not summon any other.
Mr. Bradley. No, sir. Nowhere in the statute will you find the term
" white male citizen" repeated.
The Court. Perhaps the counsel might reverse his position if the marshal
should happen to summon such on the next panel. [Laughter.]
Mr. Bradley. Then, sir, I might argue the other way. The question is not
settled yet, and I am only stating my present convictions. Argument by coun-
sel on the other side might disturb those convictions a good deal, and cause me
to go over to the other side. [Laughter.] If the court please, that is the
" chance" if the motion be granted. And I would here ask the counsel, if the
marshal should go out with the order of this court to summon talesmen, *' citi-
TRIAL OF JOHN H. SURRATT. 43
Eens of the United States, between twenty-one and sixty -fi^e years of age, tax-
payers, resident in the city of Washington," and should return here a panel of
colored men, we could challenge the array.
Mr. PiBRRBPONT. We would.
Mr. Bradlby. Gentlemen, I don't want to give you the chance; I don't
want to put your virtue to so severe a test. [Laughter.)
One word, sir, as to the construction of this statute and I leave this question.
Is it directory or is it not ? In the cases referred to in 7th Wendell, we find
that where certain proceedings are required, not essential to the substance, and
they be not observed, non-compliance will not vitiate the list of the jury; they
will not vitiate the panel of the jury. Where a man is trie4 for a capital offence
by a jury, all of whose names were not put into the box before they began to
draw the panel, and the statute in terms required that they should be put into
the box, the court said that the statute was directory.
Now let us look at this statute. It provides that the register of the city of
Washington shalUmake out a list of persons whom he deems best qualified as
jnrors ; the clerks of Georgetown ana the county the same. It says, ** the
officers aforesaid shall select." The gentlemen say it was a power conferred
upon these three men jointly ; each man must carry to that meeting a greater
Dumber than the amount to be selected. The register of Washington must
carry more than four hundred, because out of his list is to be selected four
hundred, and so as to the others. If he carries only four hundred there cannot
be much of a selection. He has then to carry, according to their construction,
more than four hundred, in order that the other two may select. The statute
says he shall make out a list of those whom he deems best qualified for jurors,
and each of the others do the same ; and the officers aforesaid shall select from
the list made out by the register of Washington, four hundred names, and from
the others so many. They say that that is wholly illegal and void, unless they
all three unite in making this selection. Is it so, or is this provision merely direc-
tory ? Does the failure of the three to act jointly vitiate the panel or not ] Is it a
power granted to three to beexcercised by the three together, or can it be exercised
by each one for himself? Suppose only two of them met — suppose there is no clerk
alive in Georgetown, or in the county, and the time comes round when they are to
make the selection, what are we to do then ? We cannot have any jury in that part
of the District ; you cannot have any jury. If it is a power given to the three, each
and all three must unite in exercising it. Two cannot exercise it. Nay, more :
Buppose they are all three together, and two of them agree upon a man while a third
diners, what is to be done ? There is no power given in that case. The inference
is that the majority shall govern. That, I suppose, is an ordinary rule. There is no
provision for it. What then was the intention of the legislature ? It was to get a
Ust of jurors prepared by men not concerned in trials in court, criminal or civil,
not partisans, but men bound by their official position to do justice, and to make
out a list equally as they could between all the contending parties. Each man
makes out his list; he has exercisad his best judgment. Is he prepared to
submit that judgment to the other parties or not ? I mean, is the law mandatory
or is it directory ? Does anybody complain ? No. Does anybody say there
is any irregularity except this misapplication of the law ] No. What does Judge
Savage say in the ca«e I read from 7th Wendell : " That where it was by the
mistaike of the parties, it does not usually vitiate." There must be corruption,
and the corruption must be alleged and proved ; but this is not the mode by
which that charge of corruption can be investigated and established. There is
a mode, undoubtedly, by which the United States might have reached any
iiregnlarity, bat it cannot be by this process of challenging the array. The
Btatnte, then, means to get an honest and unbiased jury, and although there
were, and are now, and always will be, persons residing in the same town,
44 TRIAL OF JOHN H. SUBHATT.
differing in their political sentiments — some for, and some against, the govern-
ment; some sympathizing and some not sympathizing — yet Congress has
invested these men with discretion ; has given them a directory authority, and
if these officers had made a mistake in the exercise of that authority thus given
to them, and the law is directory, then that mistake does not vitiate the panel.
May it please your honor, the argument of ab inconvenient^ is a very appro-
priate one here. If it he true that this whole list of jurors is illegal, and cannot
be passed upon, I ask your honor where are you going to get a jury until next
February.
Mr. PiBRRBPONT. The statute provides the mode.
Mr. Braiilby. I am answered that the statute provides the mode. Why.
if your honor please, does not this law affect the civil as well as the criminal
court? Does the statute provide for that ? Did Congress mean when they said,
that if the panel is exhausted the court should order the marshal to empannel a
jury, that the court should order a jury to be summoned when there has been
no jury returned or empanr^elled or listed ? Can it be pretended here, if the
court pleases, that if these officers, the register of the city df Washington, the
clerk of Georgetown, and the clerk of the county, had never met to perform the
duty under that law, that the court could have ordered a jury to be summoned or
the marshal to go out and summon talesmen 7 It is made to depend entirely
upon the exhaustion of a ** panel," and a "panel" means a "legal panel." This
list of names is no panel unless it is legally here. There is no return of the
jurors, because the list of jurors put into the clerk's hands, according to their
theory, is no list, and there being no list and no return, there is no panel, and
there being no panel it cannot be exhausted, and if it is not exhausted then the
marshal cannot summon talesmen.
Mr. Pibrrbfont. Our argument is, that the panel is illegally summoned.
Mr. Bradlby. Why, may it please your honor, an illegal panel is no panel
at all. The very ground upon which they proceed is, that there is no jury here.
If there is a jury here let them go on and try the case. It is because there is no
jury here that they seek now to summon a jury here, and there is no jury here
they say because these officers failed to discharge their duty according to law. to
make their returns according to law. Therefore there being no return, no panel, I
ask how the panel can be exhausted. That is the question. Let me read that pas-
sage again. I believe my learned friend has confounded words here.
* * '* In a capital case, where the said panel shall have been exhausted by
reason of challenge or otherwise, the court, before whom such capital case is
pending, may, in its discretion, order additional names to be drawn ; and if all the
names in the box shall have been drawn ou tand no jury found; the court may
order the jury to summon talesmen until a jury shall be found, and if a jury be re-
ouired for the circuit court, the twenty-six persons whose names shall first be drawn
snail constitute the jury for that term,and the names of the persons drawn as afore-
said shall not be again placed in such box for the period of two years. If any
person, whose name is so drawn, shall have died or removed from the district, or
has become otherwise disabled from serving as a juror, the said register and
clerks shall draw from the box another name who shall serve instead, and after
the requisite number of jurors shall have been so drawn, the said box shall be
again sealed and delivered to the clerk of the circuit court as aforesaid."
Now, sir, if there are no such persons legally selected, drawn, or summoned,
how can there be a panel. How can the marshal proceed to summon a panel in
the place of that exnausted by challenge or otherwise, when there is no panel
to be so exhausted. He cannot do it, in my humble view. 1 think the intention
of Congress in this matter is perfectly clear, and, therefore, I shall not further
discuss that question. I contend, therefore, that there is no ground upon which
this challenge of array can stand.
TRIAL OF JOHN H. 8URRATT. 45
The District Attorn by. I do not rise for the purpose of argaing the mo-
tion before the court, but, with the permission of your honor, and my learned
friend, simply to say a word or two regarding a certain statement in one of the
newspapers of the day to which my attention has just been called. It is an
item in the New York Herald, purporting to be telegraphed from this city. The
article is not very complimentary to myself, but as my friend is spoken of in
very high terms, I am not disposed to quarrel with the writer, for, as a generous-
hearted man, I am more anxious for the reputation of my friend than I am for
my own. What is intimated in it, I would not think of sufficient im-
portance to be called to the attention of the court, were it not that allusion has
been made to it here by the learned counsel who last addressed your honor He
stated that there was some reason not made known for the motion which we
have submitted. I deem it due to myself to say
Mr. Bradley. I beg your pardon if I have said any thing wrong. I thought
it was a fair retort upon what was said by Judge Pierrepont.
The District Attornby. Notwithstanding the disclaimer of the gentleman
to impute any wrong motive to us in submitting the motion now before your
honor, I think, inasmuch as public reference has been made to it here, it is due to my
position before the country to say a word. I will here say, then, that chore is
00 one who would more earnestly and sincerely deprecate any appeal to religious
prejudices than myself. Politicians may speak, think, and act as they please,
bat for my part I would drive from the halls of justice the demon of party spirit
and religious fanaticism. 1 trust in Ood the dav will never come when a judge,
or a jury, will be influenced in the discharge of the highest and most solemn duty
that could possibly be devolved upon human beings by political or religious
considerations.
In regard to the construction which has been given by the learned gentleman
to that part of the act which invests the court with power to order the marshal,
when the panel has been exhausted by challenge or otherwise, to summon jurors,
1 deem it also proper to say that the marshal would be entrusted with power,
with a right, to summon no other than white persons. All I desire
Mr. Bradley. I beg your honor's pardon, but this subject has been very
fully discussed by counsel on botb sides, and I hope no fuither discusion will
take place.
The District Attorney. Very well, sir, I am satisfied. I only intended
to say a word or two.
The Court. I do not see how it would be possible for me to render my opin-
ion on this question to day. We have a great deal of business before the su-
preme court, sitting in branc, and we have a session to-morrow for the purpose of
concluding that business tor the term. The court is to meet at 2 o'clock on
that day, and, as it is expected several very important decisions will then
be rendered, it is proper and necessary that opportunity should be afforded for
consultation with regard to them. I will endeavor, however, to be ready to
give an opinion upon this question to-morrow morning, and in order to hasten
the progress of the cause, and that no time may be lost by adjourning now — an
bonr before our usual time — ^if it will be agreeable to counsel on either side, we
▼ill meet to-morrow morning at 9 o'clock.
Counsel on either side expressing their assent, the court thereupon adjourned
until to-morrow morning at 9 o'clock.
June 12, 1867.
The court was opened at 10 o'clock.
The Court then said : In regard to the motion of the district attorney to quash
the array, or to challenge the array granted upon the affidavit of Samuel Doug-
46 TRUL OP JOHN H. SURRATT
]a8B, register of Waahington city, I have considered the argument advanced by
learned counsel on both sides, and I will now proceed to pronounce my opinion
in regard to the motion :
The act of Congress, approved June 16, 1862, entitled "an act for the selec-
tion of jurors to serve in the several courts of the District of Columbia," provides
for the selection of jurors in the following manner:
First. It makes it the duty of the register of the city of Washington, on or
before the firat day of February, to prepare a list of such of the white male citi-
zens, taxpayers residing within this city, whom he may deem best qualified to
serve as jurors, in which he may include the names of such qualified perossn
as were on his list for the previous year, but who did not serve as jurors ; the
clerk of the levy court is also required to make a list, by the same time and in
like manner, from such persons Qualified to serve as jurors who reside in that
portion of the District not incluaed in either of the cities of Wa>*hington or
Georgetown, and the clerk of the city of G^eorgetown is required to make, at the
same time and manner, a list of pei*sons qualified to serve as jurors, from citizens
of similar qualifications residing in Georgetown. And each of these officers is
required to preserve such list, so made, in the archives of his office, and to trans-
mit the same to his successor.
The making of these several lists is to be the work of each officer in his
separate official capacity.
The lists for the three principal divisions of the District beine thus prepared,
it is made the duty of these three officers to act together, and select, in their
joint capacity, from the lists so prepared as aforesaid by the register of Wash-
ington city, the names of four hundred persons, and from the Georgetown lists
the names of eighty persons, and from the lists prepared by the levy court the
names of forty persons.
The first section, which imposes the duty of preparing the lists of qualified
juiors, treats of that duty as the duty of these officers respectively. Each one
is, in the express language of the act, '* to make a list," and each is permitted, by
the law, to place upon his list the names of such qualified persons as were on the
list of the previous year, as, " in the discretion of the officer making the same,"
may seem proper. The lists are to be made by them, and kept by them
respectively, each one preparing and having the charge and safe keeping of his
own list of the persons for his respective district.
About this there can be no doubt, and, indeed, there is no controversy in this
case. When we come to the second section of the act, which provides for the
number of names to be selected from these several lists of persons qualified to
serve as jurors, persons of whose qualifications each of these officers is to judge
severally within his own jurisdiction or precinct, we find that the legislature no
longer uses the word respective or respectively, but proceeds to declare, in
ipsistimis verbis, ** that the officers aforesaid " (all of them, not one or two, but
all three of them) " shall select from the list of the register of Washington city
the names of four hundred person, from that of the clerk of Georgetown eighty
persons, and from that of the clerk of the levy court forty persons." While the
work of preparing the three lists is the several labor of the officers, independent
of one another, the work of selecting the five hundred and twenty names is
devolved upon " the officers aforesaid," the whole three conjunctly. It may not,
perhaps, be necessary that they should all meet together, and at the same time
and place agree upon the four hundred names to be taken from the Washington
list, or eighty from the Georgetown list, or the forty from the county list, but
certain it is, that all "the officers aforesaid" shall select the number of names
prescribed by the statute. If one of the clerks only shall make the selection
from the list prepared by himself, or even if two of them shall make the selec-
tion, this will not meet the requirement of the law.
The principle has been too well established by a long current of decisions to
TRUL OP JOHN H. 8UBRATT. 47
be now questioned, that wheu the law, enjoining upon three or more the duty of
performiog an act, without giving to a majority the power to act in the premises,
all roust act, or the action of those who do act is a nullity, and there is not in
the statute a question, one single word or syllable, that looks in the least towards .
a selection to be made from the three lists, or any of them, except by the united
judgment of three officers upon whom the duty is imposed.
It is just as certain, therefore, that the entire three must act in making the
selection of five hundred and twenty names for jurors, as that each of the clerks
and the register is to prepare his own lists severally.
After these five hundred and twenty names shall have been selected by " the
officers aforesaid,'' then the fourth section of the act of Congress further pro-
vides, that " the names selected from said lists shall be written on separate and
similar pieces of paper, which shall be so folded or rolled up that the names
cannot be seen, and placed in a box to be provided by the register and clerks
aforesaid, which box shall be sealed, and afler being thoroughly shaken, shall
be delivered to the clerk" of this court. The fifth section provides, that when
juries are needed for any of the courts during the year, the register and city
clerks, and the clerk of this court, shall meet at the city hall, and such juries
shall be drawn by the clerk of this court, who is to publicly break the seal of
the box and proceed to draw the requisite number of names.
Snch are, briefly stated, the provisions of the act of Congress upon which the
motion in this case to quash the array is rested, as I understand them, and as I
apprehend they must be understood by everybody possessed of ordinary
capacity, and free from the bias of interest or prejudice. There can be no othtr
construction put upon these provisions, which will not do violence to, and, indeed,
utterly pervert the language used by the legislature to convey their intention,
lu enacting these provisions it was doubtless the intention of Congress no longer
to leave in the hands of one man — the marshal, or any other single man — the
power of selecting juries, in whole or in part, except in the exigencies of certain
cases, for which they provided in the same act, and which cases are of rare
occurrence. This power, vested oftentimes in marshals and sheriffs, nobody
doubts, had heretofore been often grossly abused, and in many instances made
the instrument of injustice and wrong, and Congress thought it would better
serve the purposes of justice if it should institute the combined selective power
to three or four officers, the register of Washington city, the clerk of George-
town, the clerk of the levy coart, and the clerk of the supreme court, in the
{>lace of the much abused and arbitrary solitary power of the marshal. This
aoguage, in my judgement, expresses the intention as clearly as any idea can
be pictured by the English language. Each of these officers was, doubtless,
intended to act as a safeguard against any abuse which the partiality, bias, or
corrupt disposition of the other might possibly allure him to commit.
The affidavit of Samuel E. Douglass, the register of Washington city at the
time of the selection, made in January or February last, of the names from which
the present panel of jurors is taken, shows, first, that neither the clerk of George-
town, nor of the levy court, saw one single name on his list, much less aided or
cooperated with him in selecting the four hundred which the law requires that
these three "officers aforesaid" should select, and that he did not see a single
name upon the list of either of the others, or co-operate in selecting from their
lists. On the contrary, it shows that each of these three officers put into the
box the number of names specified in the act for their respective jurisdictions,
each independently of the other, and without the slightest regard to the judg-
ment or consent of either of the other two.
The affidavit further shows, that after the selection of the names to be put in
the box had been thus made, in utter disregard of the requirements of the act of
Congress in tliat behalf, instead of sealing up the box and thoroughly shaking
it, and then depositing it with the clerk of the supreme court, as required by the
48 TRIAL OP JOHN H. SURRA! T.
fourth section, and then meeting afterwards in the office of the clerk of the conrt
to witness him hreak the seal and draw the names of tl:e jury required for the
present term of this court, as provided for in the filth section of the act, the
clerk of Georgetown city at the same time, though in the presence of the clerk
* of the court and the other officers, proceeded to draw from the hox the names of
this present panel, to which challenge is now made. This was also a most re-
prehensible dit^regard of the plain provisions of the act. These are the facts
upon which the application to quash the array ia grounded. The question
presented by the law, and the facts, (^ which are all admitted by the demurrer,)
tor the decision of the court, is twofold in its character :
First. Does the law of Congress require that the judgment of all three of the
officers named therein should, either united or severally, pass upon the entire
five hundred and twenty names required to go into the box in making this
selection from the three lists, or does it only require that the clerk of George-
town only should pass judgment in selecting the eighty names from that city,
the clerk of the levy court upon the forty to be chosen from the rural portion
of the District, and the register of Washington to select the four hundred
to be taken from this city ?
Secondly. Whether, if the act of Congress does require the judgment of all
three of these officers to be exercised in the selection of the entire five hundred
and twenty names to be placed in the box, the placing them there in the manner
described by Mr. Douglass in his affidavit, is cause of principal challenge to the
array.
^ I am clear in my conviction that the law requires the united judgment of the
three officers named in the act in the selection of the entire number of names to
he placed in the box, for the reasons that I have already mentioned.
Is, then, the several action of each of these officers in selecting exclusively
from his own list, and not even looking at the lists of either of the others, or
even knowing any of the names taken trom these lists to be placed in the box,
aa sworn to by Mr. Douglass, and admitted by the counsel for the prisoner, a
ground in law upon which to set aside the array.
It is argued by the counsel fur the prisoner that it is not ; that nothing ex-
cept a defect in the summoning of a jury by the sheriff is principal cause of
challenge to the array in England by the common law, which we have inherited
firom our Biitish ancestors, and which is the law in this District, by which we
are to be governed in the decision of this question ; and the case of the Queen
against 0*Conuell and others, has been ched by the counsel for the prisoner at
the bar as conclusive of the question in this case.
1 confess that my vener<ition for the common law of England may sometimes
even run into a weakness, but the day is long p&^sed with me, and should be
with everybody, when decisions of courts and mere arbitrary utterances of
test-writers, however hoary with age, or exalted in position, are to be accepted
as Procustian beds, on which other courts and other people are bound to fit
themselves, with or without reason. With me no deci:*ion is of weight that lacks
of reason for its solid foundation, unless it be the decision of a superior court
that holds a mastery over me, whose mandates, right or wrong, reasonable or
unreasonable, I am compelled by law to obey.
The grand object of jury trials in this country or in England is, or ougiit to
be, and is supposed to be, a fair and impartial investigation of the subject in
controversy by honest and upright men, who are entirely indifferent between
the parties to the suit. It was to subserve this view that challenges were per-
mitted to be made either to the array or to the poll, and either by principle or
by favor. Some persona entertain the idea that challenges, and many other
advantages, are given by the common law to the prisoner exclusively, and
nothing to the Sute. This ia as if we should say, that all the provisions and
IbrmnUriea of the common law were invented simply for the purpose of pre-
TBIAL OF JOHN H. 8URBATT. 49
Tenting the public from obtaining its just demands upon the guilty offender
against societj. It is as thongh such formularies were a mere means and cere-
mony by which the accused is to derive every advantage and have every means
to assist in setting him at large, without respect to the rights of an offended com-
munity. I entertain a different opinion. I concur with Chief Justice Gibson,
of Pennsylvania, in the case of the Gommonwealth vi. Joliffe, 7th Watt, 585,
in which he says : *' Total impnnitv was not the end proposed by the legis*
lature, nor ought it, perhaps, to be desired by the philantropist. It is not easy
to discover a conclusive reason why the punishment of the felon ought to move
our tenderest sympathies, or why the laws ought to be defectively construed
in purpose that he might elude them. To rob the executioner of his victim when
the laws are sanguinary, it might be an achievement to boast of, but we are told
at the mitigation of our penal code that the certainty of conviction to be ex-
pected from mildness of punishment would more than compensate in its effects
the want of that severity which was thought to deter by its terrors. * * If
it be forther indulged, a shorter and certainly a cheaper mode of obtaining its
end would be to have no prosecution at all. But it is one which would scarce
be found to answer in the state of the times. Why, then, should the prisoner
have more than serves" (speaking of challenges) *' to give him a fair trial? and
his twenty peremptory challenges certainly gives him that, and having secured
to him all he had a right to require, it must have occurred to the legislature that
the commonwealth must have a fair trial too."
Let OS now see whether the case of O'Connell and the Queen, tried in 1844,
is one which we ought, according to the counsel of the prisoner at the bar, to
accept as conclusive upon the question now before us. In that case, by Sd and
4th William IV, chapter 19, and by 4th and 5th William IV, chapter 8th, cer-
tain provisions were made regulating the mode in which certain books should
be prepared, from which the sheriff was required to make certain a selection of
juries.
In the preparation of one or more of the lists from which these jury books
were made a number of names of persons qualified as jurors was omitted. A
challenge to the array was made in this case on the ground of the omission, and
it was held that such omission in one of the preliminary lists was not a suffix
dent cause of challenge to the array. But that is by no means the present
case. To make the case at bar similar to that of O'Connell, and bring it within
the ruling in that case, it would be necessary.tbat Congress should, in the law
for summoning jurors, have incorporated a provision requiring that the three
ofiBcers, who stand in the place of the sheriff, should have prepared their respect-
ive lists from the lists of the assessors, or some other officers, and that in mak*
ing the lists of said other officers some negligent or fraudulent omission should
have occurred. It may be admitted, without any prejudice to the motion in
this case, that the omission by such assessors or other officers to make a com-
plete list from the list or jury book, if we may so term it, used by the register
and clerks, in order to inform them as to who all the persons legally qualified'
as jurors in their respective jurisdictions were, would not have been of sufficient
ground of itself to set up this motion. And yet I am free to say that, in my
opinion, it ought to be sufficient. But admitting it were not, it is a very differ-
ent case from the one before us. Here Congress requires that we combine the
judgment of three officers in selecting the persons of whom the juries are to be
eomposed. Each of these officers is to be a guard over the other two, to pre-
vent him from perpetrating a wrong against individuals or the community by
putting in the box, from which jurors for a whole year are to be taken in all the
eornts, the names of persons who are disqunlified, either from want of mental
capacity, moral rectitude, purity of blood, want of proper age, or tax paying
qualifications.
50 TRIAL OF JOBS H. 8UREATT.
If one of tliosc otHcen. a5 Mr. Douglass did on tbe occaeion of filling the
jury-box on Fobrunrv la^t. should exercise an exclusive judgment in tbe selec-
lion of 400 out of the 520 names put into the box. tbe safeguard which Con-
ppi'ss soucbl. by the act. to throw around the selection of jurors, is not worth a
ti^. and the law was not wonh the lime consumed in its passage. Mr. Douglass
U'ay be. and doubtless is. an honest, fair-minded and honorable man ; but the
law iMUUo; be rt^laxeti ou that account, for we cannot tell how long the office
may i\nuinue to be tilletl b} such men. It was enacted to prevent dishonest or
preiu%".ioevl or ^vtrtial men from carrying: ou: their dishonesty, prejudices or par-
tiality, .iud ^e have no r'^h: to reLix ilie law because of our belief in the tair-
no*s ot' any m.^n.
The r;*.V'.:v\ as woU as ir.xiividna'.*. have ;i r'ffh; to exact a rigid compliance
^i:l*. ;';i' iw^iiirx nu :i:^ of :!;e hw. .«v. ;ho ouly way to =-cvure a fair and impar-
f,al v;:v.:v': l>.^:h to :h<- rv.Mic :i:v,: iV.e pr:*"»ner. :a :h!?. a* ia all other cases, is
tv» >t-.» \V..\z :ho law Iv :V.r.y. fairly. a:i.i i'jsivariaV.y txrcuTrd in all its require-
mi:;:< The :hrtv otS.^ir^ s-.HV.r.v, i:i ::.e ac: ■:! Cos:rrr<* sracd in the place
K'^X :h;' n**r*hal or ^hiii* J-r.i* ^x:. ■ art- *::=i::^^cr-i :.^ :ry ci-^r* in this court
Riv.*: v.. : x".:'.v K* >:;:v.u:.>v.;\: vr. :"^::'.y. : ■;: ::•.::*: ";-. *t'.'-c>-i :a ^'brdien.^e to the
n\,v. r;v.v.v.:> x! :he '.*«< The .a*'. .: v»W^r.::rr. ca- s-»rarccly be said to be
r\^ar.*.«v. a* la« •:: :':::< o".:n:ry. "•i.rv- vj..rt in::* a: :L:* day are considered as
v-f v.'.;r: :i;W"."ary i:r>*r:avvt' »":::v. k*-!!';: ir:-.: w::}: :i:c s-'r^iacce of ihe law.
I:* .-.1 ^ ;-.*::. i;!:",v ;r .:;:.i.;'.: ■.;■. ::.: *r.-,:.r .: i--ri:y :;: arr:s.y:-j ;he fianel gives
<:*:■,: ;V*:'v :: : : ;•>.; :." .rr'I.-.v.jTf ''-i .irr*.y \* * ur. : -': :f-i.ly ;Lr law. ride 3d
F.cks:.*: :. :''^. , :*;:4:: ^/.vh y r:-.. Ty : .•.:.-•,■;'.: :: :'::■: : ar: : :Lo?* who are
s-:.>:.:.::;v. r\: : -, >>.;?:- 5 av.;*: ' R:v. s- ':-: r ■>• :a-?- .: I-:,a"."ri^. to the array.
!:• :>? >:a:; .-:' N-:* Y::k :: '..a* :•:•:" : -'.!.. -.r. :'^-: ras--. •:: '.Tirii-rr r#. Tnruer,
> ': .*.": >v yJL^- xV.'. :. »: :! ; .■.-'.•• : c r* *-."rt::y-:w: r.i— -^ by the cerk
!-. V :i; ;..:n-S;\. *:-:;a.-. •: :: r% - \. :j : -:.r:>r r:*:; .>•! ':y !aw. and the
*«;',»: i :: ::v *\":v ': :-.- .: : :": : *-• --y-:-* -. i. i. : * i.rrcr.on :o the
s>;.- * :.' 5- ,r--r.- V •>; :': .-Ty* \ •": :- *.-■•: *t;1 ".y ': rr, wi.? *:ich ctrraoll as
%. .. .1 >i.* JL -■ a .'"t"-: \ir- ' '-: 1T•:■«^ 1: -'n r*.>-- : Ti— :^ >». -^i-irt- plain-
:f ; -'■"' 'f \:. V.':'f. :.: -.r- ** :: : : ' ; Lrs.T: * vr.Tiiii^a.' Kep^rts,
vwuT; '. *> '" "* *■* -- ■ *!'■»" ■-■•> ■ .. : is:;: .■*".-••: i:: r.-T^ -^ a^ reiTiircni by
>-a;..:: ftsr.-; : ?* ."^.•.■•:T'' '.--.■.•■ i :•• ,•:" " :•* t iry •-z^s-^n-ed by
:i-: >*.■ f ^ . ■ . <.:2 7."*.',-. . ■ !••>>- ; - . - * : '■ r:« I'-i iJi , ::.-. ^r.victioa
:> ?■«:.' /^ • !»> :■;■ ...... .- ■ I.- T". *. :■■ .■-:..- : :■ i—.::. i. was re-
»:-^- ,; ":.>■:■ : V». '^v^ .--"•:: ^: ■.- .'^■- '.f .tv rrja'-atiag
•!•*'-: •■• -..^ ..-■>•'•..-' -. : '**.■< ■" T : i: i z-zr- : fr :Lr jury
5-: . .■ -^ :•; • > * v ■ ■ -^ t ■ - -.-'.-...•- J":- ■. :lf can f't'
r •!.>>>■.*.. .• • .' •' . .' ^ *'■::.■ r:.::7i- i.^: I'.-r the
,^ i. . : > . ? • .'■ :: ■ ^ . ■ .- ^ v .- :■ r T - SL^'- '. Z^r by
^ Ti ■ .T"^ * ■ " •.-•.■■ .'t .-'--i. • v.- J : .zs .: :ir law
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TRIAL OF JOHK H. SUBRATT. 51
tain in respect to tbe eelection of jarors, and the secoring of a fair and impar-
tial trial on either side, that they reqaire a strict compliance with the very letter
of the law, no matter from which side the challenge maj be moved. It is jast
as important to have fairness and impartiality upon the one side as npon the
other, otherwise the trial of a criminal, however deep his infamy, may be made
a mere farce through which his enlargements is to be procured. If it be im-
portant to observe the mere forms of the law, it is, in my opinion, of much
graver importance fully to comply with the least of its substantial requirements.
Believing, therefore, that the substantial requirements of the act of Congress
m this case, providing for the selection of a fair and impartial jury, have not
been complied with, but entirely set at naught, and that there has been grave
defoult upon the part of these officers whom that act has substituted in the place
of the marshal, for the purpose of having them exercise united judgment in the
selection of all the persons whose names are to go in the jury-box, I am con-
8trained to allow the motion of challenge in this case. I do not consider the
fact that the present panel were improperly drawn by the clerk of Georgetown,
who had no right to put his hand into the box, because the objection which I
have allowed lies even deeper than that.
It is, therefore, ordered by the court that the present panel be set aside, and
that the marshal of the District of Columbia do now proceed to summon a jury
of talesmen.
Judge Fisher subsequently said : My order is that the marshal summon
twenty-six talesmen.
Thereupon the court adjourned till to-morrow morning at 10 o'olock.
June 13, 1867.
The court was opened at 10 o'clock, when the clerk proceeded to call over the
names of talesmen summoned yesterday, in accordance with the directions of
the court.
The first name called was that of Mr. William B. Todd, who responded.
The name of George Mattingly was next called. He failed to answer.
The Court said : I will remark, with respect to Mr. Mattingly, that I have
received a letter from him, as I have, also, from numerous other gentlemen who
have been summoned, asking to be excused from serving. I will read Mr.
Mattingly's letter. I have no doubt that what he states is true. The letter
is as follows :
" Washington, D. C , June 13, 1867.
** Dbar Sir : I was summoned yesterday on the jury to try Snrratt, and I have
to say that I cannot possibly serve. Whilst 1 am willing to serve you, and luy
country, at all times, I must respectfully ask you to excuse me on this occasion. I
will here state, that I am exempt on two grounds, so that you will have no difficulty
in excusing me. First, I am engaged in carrying the United States mails; and
secondly, I am over age, having attained my sixty-fifth year on the 24th of
December, 1866.
" Very respectfully, yours,
"GEORGE MATTINGLY.
"Hon. George P. Fisher."
Mr. Mattingly is a very excellent man. He has served here a number of
times on the grand jury, and I have no doubt that he would make a good juror,
bat if he is over age of course he is exempt, and not only exempt, but he can-
i»t lawfully serve. What do you say, gentlemen ?
Mr. Bradley. He will have to be excused if he is over sixty-five years of
V-
The OoURT. Yes, I have no doubt of it.
Mr. Clerk, you will strike his name from the lists.
52 TRUI. OF JOBS H. SORSATT.
WOfiam H. Tenner wns eafled, and responded.
Wmiam P. IMe ww next called, bat £uled to answer.
Andrev J. Jorce was called, and responded.
Hie Corrr. tTas not Mr. Jojce on the grand jmj ^hat feond this bOl I
Mr. JoTCB. No. sir.
Mr. WiLsox. I dioQglit lie was. He was on a pieiioiis one. I remember.
Mr. Joyce. Tee, sir: I was on the grand jmj pverioos to that, serentj-one
dars.
\Lt, Bkadlkt. It wonld make no dUbeute. Toar honor, as £nr as tiiis ease is
concerned, as the law makes no exemntkm in
:empOoni
■e this no
The Cocrr. Mr. Joyce hands me th^ note :
^ Wa^bukgtox, D. C JbiK la, 1S67.
*- Thi» cotilies that ^ diiid oi Mr. A. J. Jojce is venr dangeronslj ill, and
tkis h» preanee » neosaftrr at home.
-^ THOMAS MnJ.ER, IL D.*'
The Cocrr. What haTe jon to sar to that !
Mr. B&JUiLSY. An we cut sar s that it » snbycct to thedkpoeal of the court
Th« Cocrr. I do noc wi«h to excose anrbodv where there b objection made
ft> the excttse that jbjlj be presented, bat I think ■ beget ci there is a good and
Tal5c excsise ihe p«E^ o^di: a> be relieve
The IHsTTKT Attoucy. If Tonr hoeor p£ewes^ mider the drromstances,
I ^kaH iaterpcise no objectajn to exfiwing Mr. «IoTce.
T^ CocaT. Mr. BndLev <£o Ton infierpoiie anj ob^ectiott ?
Mr. BuLMJBT. la hss case, if rvn hovar pienm. we hame to snbnut entirelj
to tie «xder o< the owzv We w^ tobe saTcii the neciBBszSTof either objecting
or x^sentsz^.
The Cocrr. I and ^as. nader the ekhth sectiiM of the act fw snmmoniog
jTr:rs. there 3» a «l2screCBt?aL repc«ed rx the ciMrt. an.*! as I w^nld not wish
di be nh^^frec :o 53 apec. a JTCzy ^ a case whai blt ch^ i wn$ IjbiC ^ ^^ pmnt
«c deailt. azc mj p^instcsan airisec bt prejence to be Kcetsoaiy as home, I do
not K<L :kibS Is w^jo^ji be J:as^ djcsaf to rei|c£re Mr. Jcj^e 10 <i: s«. He k excused.
Fr;uck Tjjkc w:l« calLeiL aaid K;5piNaoeiL
T^ CociT. I have aiw receiTed a au«e »m Mr. Tar^^. w^aea I win read :
* WjLS4r?K-,rTv>x. Jvmt 13. 1S67.
* Tie X2»£«5cir35fc. w::bL rr*i5 rewft be** jif»iT^ ^ ^etie 6> jTor kxior that
he ha^ Vnil Mai^ n^ jujijma oa ^ Sixrract easew mrw pettcx^ ; that he is
IMC If ?^5« I3ne. aa«i hai^ aoc Veeot arr <>eTenI iiajrs. a a cuaiaEaan of heahh fit
3IC n»tr i^iTY. »7c ad^ i-^> ;i3»frfff?&ke sc wtsh^qs a pweygcs «?f Ae^ajia^ and em-.
hw i'lMint" ne CKe: dbu <c«nf Vo^eti^ a£fti» new B&uxrtn^ need nr^entlr his
perK^ouI a:>ffT:a?a. ax aneacrvn w^xh ^ n»K of a xtcace p«Msibor w W delegated
1» icBten : and tha&> x jtmi a£ft» <aBaN-( nfciscTe ^nai afiacacara as hi* hands
wtiiizL a xw iaT>^ iif cn^cc jaI datsatets^s sCKXiiin^ will be jenMnN- mjvcd in
tw»/ ?j«%x <tf<tafir%$w
-^ Ftt t^««e reafioi&s^ w^iSca ^ xxf^KTS^^rxed Je«$ jmiy «^ KsbsciasBifie Inr his
a:&ijiTtc^ ^ retsQeccrxTx ^nr^ Tt^or 3ira»?c ?^ ill»7w iin& >r fi irffcuj.! hia *iatj
>i ue AW. a3»& ^r taie c^iozv a: ixj jcjmt sMinm; ;aa«i :2e pcesesi: ^
- rSAXCK TATLOR.
Mr. l^ULVCST. He ai^te Todbf Mfi^ 90 ^ tcasemenc tt &e«s m dw letter
amr sia W pdaN« vnwr tae »e<et«;$^ it iMt£:a;c ttt ^o^KveinMj: adUarEt.
IVt OmiT. I wut jay ^4(5 Mr favW tamML ^ mif W ^^ ^f^ receir-
"^ " . t^ne &« lidi tiMae MMM^ ;eftuMi» w^ the $ai««nmat
TRIAL OF JOHN H. SURBATT. 53
making it necessary for him to raise very large sums of money in the transac-
tion of that basiness, which business is transacted between him and persons
residing in foreign countries, and unless he had the opportunity to make those
business arrangements, it might prove extremely prejuaicial to his credit
Mr. Bradlby. Will your honor pardon me ? We on both sides concur that
this is a matter entirely within the discretion of the court ; and we take it for
granted that there may be excuses, personal, and relating solely to the private
affairs of individuals, which they do not want to have made public. 1 would
suggest to your honor, therefore, that we do not desire to hear any reasons of
that nature which may be assigned by the party.
The Court. Mr. Taylor, I am quite sure, does not object to having the rea-
sons he urges made known. He is a man of good standing, and he is desirous
of maintaining that good standing.
Mr. PiBQRBPONT. As I understand my learned friend, we both agree, that
in any of these cases that may arise we do not ask to hear the reasons, but leave
it entirely with the court.
The Court. Very well. With regard to the case of Mr. Taylor, I will state
that I know from the statement he made to me that it is of the first importance
that he be relieved in order to attend to his business arrangements. He is ex-
cused.
John R. Elvans was called, and responded.
David P. Hollowav was called, when he rose and said:
I beg leave to state to the court that I suppose I am not competent to sit as
a juror in this District, from the fact that I am not a citizen of the District.
For the last six years I have voted in the State of Indiana, and am in business
there — ^keeping a furnished house for the purpose of retaining my residence in
that State I never voted here, and do not contemplate doing so, but expect
soon to return to Indiana.
The Court. Are you residing within the limits of this District at this time ?
Mr. Hollo way. I do not know what technical meaning is given to the word
•* residing." I am staying here.
The Court. Keeping house and transacting business here ?
Mr. Hollowav. I am not keeping house.
The Court. Are you transacting business here ?
Mr. Hollowav. I am transacting business here. I am engaged temporarily
in business here.
Mr. Pibrrepont. Will your honor permit us to make a suggestion, for
although we all agree to leave this matter to your honor, yet we feel that we have
a duty to perform in the way of making such suggestions to yon as may occur to
us. Witn the permission of the court I would say, that if light excuses are
taken, judging from the experience we have all had in such matters, the men
best fitted to serve as jurors are those who are engaged in important business
for themselves ; and there is some danger, unless the rule is adhered to somewhat
strictly, that men, from a view to their private interests alone, will get rid of this
very high duty which they owe to their country. We know very well that
they wish to be excused, as it is very natural for them to, but they should be
made to feel the importance of this great duty which they are called upon to
perform.
The Court. The law says that if the party is a resident here, is over twenty-
one and under sixty-five years of age, a good and lawful man, who has never
been convicted of a felony or misdemeanor involving moral turpitude
Mr. Bradlbv. And a ** taxpayer.'' [Laughter.]
The Court. He is a " taxpayer ]"
Mr. HoLLOWAY. Nof sir. I have paid an internal revenue tax here, but I
Ipay my other tax in Indiana.
The Court. Do you pay any tax on real estate, or a personal tax, here }
64 TRIAL OF JOHN H. SUBBATT.
Mr. HoLLOWAY. I do not.
The Court. Then 70U are disqualified ? Mr. Holloway is excused, Mr. Clerk.
Thomas Blagden being called, said :
I have formed an opinion. I have read the testimony.
The Court. That will be for you to state, Mr. Blagden, when you come to
answer on your voire dire.
• Riley A. Shinn was called, and responded.
Richard M. Hall being called, said :
I would like to represent to your honor that I feel that it would be almost
impossible for me to sit here as a juror in this case. I am entirely alone in my
business ; and it is of that character — ^the agency business — that not only
would my own interests materially suffer by being required to serve as a juror
in this case, but the interests of a great many other persons who have confided
business to me. There are several matters that demand my attention this
week — matters that I could not delegate to a clerk in my office, as I do not
think he would be able to carry on the transactions. They requure my per-
sonal attention. The interests of other persons would suffer, perhaps, a great
deal more than my own, and I may state beside that that I am living in the coun-
try with my family, and if I am required to serve here, they will be left alone,
and in a very lonely place. I will, therefore, be under the necessity either of
moving back into the city, or providing for their care in some other way.
The Court. Your excuse, Mr. Hall, would let off nine out of every ten of
the jury.
Mr. Hall. I will state further that my business is one that I have just be-
gun— that of real estate agency — having just left the office of register of deeds,
and that in consequence of its being so young, and from the fact that I can
delegate no one to attend to it for me, it would suffer materially — in fact irre-
parably if I have to remain here two or three weeks.
The Court. I hope you will not have to stay three or four weeks.
Thomas J 8. Perry was called, and responded.
Franklin Philp was called, but failed to respond.
The Court. Mr. Philp addressed me a letter. I do not know whether I
have it or not.
Mr. WfLSON. Mr. Gooding (addressing the marshal who was standing near
the judge) I gave you a letter which he addressed to me. I will state to the
court that he addressed me a letter saying, that it would be necessary for him
to leave the city immediately on matters of importance, and asking to be ex-
cused.
The letter was handed to the court by the marshal.
The Court. Mr. Philp came to see me last night, and I referred him to the
attorneys on either side ; and now it seems that he wrote a letter to Mr. Wilson
stating, that he was engaged in public business which would require him to leave
in this morning's train. I suppose he is not here.
Mr. Wilso.v. He is not here, I infer from that letter, although I told him
that he would incur a grave responsibility by going away.
The Court. I told him he had better see Mr. Merrick and Mr. Carrington,
or Mr. Wilson.
Mr. Mkrrick. He saw me, your honor, and I told him that I did not feel
that we had the power to excuse him, and that the proper course for him to
pursue would be to present himself here this morning to answer to bis name,
and to present to your honor for your consideration the excuse he made to me.
He stated to me that his excuse was that at present being engaged in public
business, some matters connected with the public, he had, in execution of some
of his business, already taken passage for Europe in a steamer to sail some
time in July.
The Marshal. I would state that Mr. Philp was served in person.
TRIAL OF JOHN H. 8UBRATT. 55
The Court. Well, he is not here— -proceed to call the other names.
The D18TICT Attorney. If jonr honor please, it seems to me there onght
to he some process to enforce the attendance of Mr. Philp. He has been ad-
vised bj the assistant prosecuting officer, and by counsel representing the pris-
oner, that he should be here to respond to the summons of the court, and if he
had any reason to present why he should be excused, to offer it then. While I
have been disposed to accommodate gentlemen, as far I can, consistently with
my sense of duty to the public, I now feel that it is incumbent upon me
to interpose. This is a very important and solemn trial, and surely every
American citizen should feel that there is an obligation resting upon him to
respond to any call which is made upon him* by the court. I cannot remain
silent when the case is presented here of a gentleman who has been served with
process by the court failing to appear in consequence of mere private ar-
rangements, which would be disturbed by his appearing in court in answer to
its summons.
The Court. Do you ask for an attachment ?
The District Attorney. I do ask for an attachment against him.
The Court. Let the attachment issue.
Mr. Bradley. Where is he ?
Mr. Wilson. His letter states that he was going to New York.
Mr. Bradley. Then he has gone to New York 1
Mr. Wilson. I presume so.
The District Attorney. I wish the attachment issued and placed in the
hands of the marshal of the District, and then I will feel it my duty to take
whatever steps may be necessary to vindicate the power of the court, and to
enforce his appearance. 1
The Marshal. At what time shall the attachment be returnable ?
The District Attorney. Immediately.
George H. Plant was called, but failed to respond.
The Court. I have a note upon my table from Mr. Plant, in which he says :
" I am subpoenaed by the marshal to court to-day. I am advised by my physi-
cian that I am too nuwell to attend, and hope the court will excuse me.*'
The District Attorney. If your honor please, will you be kind enough to
let me see that letter. While I am not disposed, for a moment, to discredit any
statement which Mr. Plant may make, orally or in writing, I submit that it is
his duty to appear in person before the court, in obedience to the summons, if
he possibly can do so. If not, I submit that it is his duty to send to your honor
a certificate of the physician. Surely, sir, if he was unable personally to ob-
tain that, he has friends who would do him that favor.
I again say that, in any criminal case and surely in a case of this importance
(where every one, although willing to do his duty, I hope desires that the duty
of serving as a juror may faW upon some one else,) should appear in person, or
he should satisfy the court of his inability personally to attend in the manner
▼hich this court has always heretofore required. I hope your honor will not act
in this case in determining upon the excuses of jurors upon written communica-
tions of this kind.
The Court. The gentleman who handed me this letter was informed by me
that such a letter would not do; that nothing other than the certificate of his phy-
sician, stating his inability to attend on account of his illness, would satisfy the
eourt Perhaps it may be that such a certificate may be coming forthwith ;
bat it has not reached here yet.
Mr. PiERRBPONT. We can pass on.
The DiSTicT Attorney. I will only say, sir, that if it is not coming forth-
with I shall feel it my duty to ask for an attachment.
The Court. Vfry well, the attachment shall issue.
The Glbbk. Shall I issue one now ?
56 TRIAL OF JOHN H. SURBATT.
The Court. Tes, 700 may iesae one now, bat defer awhile Bending it oat
Reaben B. Clark was called, and responded.
John Van Rcswick was called, and responded.
Samubl p. Brow.v was called, when he rose and said : I will state to the coart
that I have been oat of health for some time, and under the treatment of a physi-
cian, and I have a certificate here which I presume will be sufficient.
The certificate was then read, as follows :
"Washi.ngton, D. C, June 13, 1867.
" I certify that Mr. S. P. Brown has been under my treatment for a disease of
his kidneys, which, in my opinion, renders him unable to endure the fatigue
attendaut upon being a juryman.
"JAMES B. KEASBY, M. i>"
Mr. Brown. I will add, that I have been out of health for some time, and it
is impossible for me to sit very long at any one period.
The Court. I understand something about that Mr. Brown. I cannot object
to excusing you, sir. You are excused .
Z. D. Oilman was called, and responded.
Joseph F. Brown was called, and responded.
Zenas C. Bobbins was called, and responded.
Cornelius Wendell was called, and responded.
Valentine Harbaugh was called, and responded.
The Court. I have here a certificate from Dr. Elliott, stating that Mr. Har-
baugh 18 physically unable to discharge the duties incumbent upon a juror. The
certificate adds : '^He is now under my professional care. In addition to this»
he has two members of his family sick, who require his constant attention."
Mr. Bradlby. Mr. Harbaugh has private family matters which need not be
disclosed publicly here. They are, to my personal knowledge, sufficient to
justify the court in excusing him.
The Court. I am satisfied that this is a case where the gentleman ought to
be excused.
Joseph Gerhardt was called, and responded.
Mr. UBRUARDT. If your honor please, I do not think I am qualified. I do
not pay any taxes on real estate. Besides, sir, I do not hear well. Persons
have to speak very loud to me in order to enable me to hear them.
The District Attor.vby. Is your hearing defective with regard to both of
your ears \
Mr. Gbrhardt. Yes, sir; but one a little more than the other. (Laughter.)
The District Attornby. I do not think there is any legal objection to
General Gerhardt, although he does not pay any tax on real estate, which I am
surprised to hear, because I thought he was a very substantial and energetic
citiaen, and thought, therefore, he had accumulated a considerable amount of
real estate ; but he does pay tax on personal property, and I think, although I
have a very feeble voice myself, that I can make myi^elf heard.
Mr. Bradlby, (in rather a low tone.) He, sitting in the jury box, could not
hear half of what was said by a witness standing at this desk. (;i disunce of ten
ieet) Ue can hardly hear me now. (Mr. Gerhanit standing at this time between
three and four feet from Mr. B.)
Mr. GsRHArDT. That is so, 3*our honor. (Prolonged laughter.)
Mr. Bradlby. He hasn't heard half of what I said, although I spoke loud
enough to be heard away outside of this bar; he only guessed at it. (Laughter.)
However, it is none of my business.
The Court. How long have you been deaf 7
Mc Gbrhardt. 1 am nol quite deaif, but I do not hear well.
The Cocrt. I guess you can he made to hear, Mr. Gerhardt.
Mb PIbkkbfont. Yes, sir; we will endeavor to speak loud enough.
TRIAL OP JOIIN H. 8URRATT. 57
Mr. Gbehabdt. I will state farther, that dariDg the war I was so disabled
as to render it imposeible for me to sit any great length of time. ( Suppressed
laughter.)
The Court. Oh, I guess you can manage to get along, Mr. Gerhardt. Pro*
ceed with the next, Mr. Clerk.
Horatio N. Easbj was called, and responded.
W. W. MooRB, being called, said :
I beg to be excused. I am not at all well. I have been unwell for two or
tbree weeks ; but the principal reason that I would urge why I desire to be
excused is, that I am engagea in a business that will really suffer if I am required
to sit through this case. It is not a business of my own, but one of public
accommodation. The other party who is there in the management of it is at
present absent from the city. It is the Metropolitan railroad that I refer to as
the business which I am engaged in managing.
The District Attorney. How old are you — are you sixty-fire ?
Mr. Moore. I am not quite that.
The District Attorney. I think it is hardly necessary for me to state
that there is no legal objection to Captain Moore, and the excuse is hardly suf-
ficient. I think, upon reflection, the juror himself will see it ; because, if the
court in ruling upon these excuses is to be governed by private considerations —
the fact that the juror will be subjected to private inconvenience, that his busi*
ness or the business of his employer will suffer — ^it is difficult to imagine when
a jury can be had in this case.
The Court. Yes ; as much as I would desire to accommodate Mr. Moore, he
will have to commend himself to me by very strong considerations as to the
injury that would result to his business from his absence before I can consent
to excuse him on that ground. If he should bring a certificate from his physi-
cian that it would be seriously prejudicial to his health, it might be satisfactory.
Mr. Moore. I could easily have obtained a certificate if I had known the
rules of proceeding here. I can get it, your honor, as soon as I can see my
physician.
The Court. Very well, Mr. Moore. Mr. Clerk, pass on to the next.
Thomas Perry was called, and responded.
W. P. Dole, was called, but failed to respond.
The Court. Mr. Dole met me this morning on my way to the court-house
and put into my hands this letter :
••Washington, June 13, 1867.
"Sir : Being summoned as a juror to attend your court, I beg leave to say
that I am not a citizen of the District, and never was.
** Respectfully, yours,
"WILLIAM P. DOLE.
" Hon. George P. Fisher."
Mr. Wilson. He is an owner of real estate.
The District Attorney. I will ask for an attachment against Mr. Dole ;
that is the only response I can make.
The Court. I asked him if he was a taxpayer. He said he paid tax on an
unimproved lot that he had ; that makes him a taxpayer. Whether be is a
iBsident here or not I do not know.
Mr. Wilson. I understand he has recently purchased a lot, and intends soon
to build a house on it. He can answer for himself when he comes.
The Court. Yes ; let the attachment issue.
The Maksbal. There is one other that I have summoned ; his name is J.
H. Crane. He was summoned in the place of Mr. Mattingly, who was excused
hj your honor because of being over sixty- five years of age.
58 TRIAL OF JOHN H. SURRATT.
J. H. Crane was then called, and responded.
The calling of the list having been concluded Mr. Elvans said: I neglected
to state to your honor when mj name was called, that within two years past I
have served a full term as a grand juror. If your honor will allow me I will
state, that in reply to an inqmry made at that time as to whether the service
which I had thus rendered would exempt me from further service for two years
I understood your honor to say it would. I would ask your honor whether I
understood properly, and wheUier, if so, I am not exempt ?
Mr. Bradlby. If that were so, we would have to take off nearly half of this
list.
The District Attorney. I do not think, your honor, that talesmen are ex-
empt because of such service. I do not think there is any difficulty iEibout it,
sir. I hold in my hands the 12th statutes, p. 428. The 3d section of the Act
of June 16, 1862, with which your honor is familiar, declares who shall be
exempted. It says ;
" Be it further enacted, that the mayors of the cities of Washington and
Greorgetown, all judicial officers, salaried officers of the government of the United
States, commissioners of police, and those connected with the police or fire
department, counsellors and attomeys-at-law, ministers of the gospel and
priests of every denomination, practising physicians, surgeons, keepers of hos-
pitals, asylums, alms-houses, or other charitable institutions created by, or under
the laws relating to the District of Columbia, captains and masters, and other
persons employed on vessels navigating the waters of said district, and keepers
of public ferries, shall be exempted from jury duty, and their names shall not
be placed in the list aforesaid."
Then, your honor will observe in the 1st section, what the law says, in refer-
ence to those who have rendered jury duty. I will read it :
" Be it enacted by the Senate and House of Representatives of the United
States of America, in Congress assembled. That it shall be the duty of the
register of Washiugton city, and of the respective clerks of the city of George-
town, and the levy court of Washington county, in the District of Columbia,
within one mouth after the passage of this act, and on or before the first day of
February in each year thereafter, to make a list of such of the white male citi-
zens, taxpayers, residing within their respective jurisdictions, as they shall
judge best qualified to serve as jurors in the courts of the said District in which
the lists may be included, in the discretion of the officer making the same, the
names of the previous year, but who did not serve as jurors, and the lists thus
made by the register and clerks aforesaid, shall be kept by them respectively,
and be delivered over to their successors in office."
By implication it would seem that these officers who are charged with the
duty of making out the list, and from which the jury are to be selected, shall
be confined to those who had not served within the time prescribed before these
lists were prepared. But when talesmen are summoned there is no limitatioD,
as your honor will observe, by reference to the other sections of the Act, which
has been so frequently brought to the attention of your honor.
The Court. I do not see that there is any provision in the act exempting
Mr. Elvans.
The District Attorney. Now, if your honor please, I understand that
Captain Moore, one of the jurors who requested your honor to excuse him,
stated that he could obtain a certificate from a physician, of his physical ina-
bility to act in that capacity, and by the permission of the marshal, I believe,
he has gone to get a certificate.
Mr. Braolby. It was my fiiult that he went. I understood the court to say
that he had better go quick.
The District Attornby. I am not complaining of the hci that he has gone
ftr the purpose of getting a certificate, but I simply desire to say, althou^ it
TRIAL OF JOHN H. 8URBATT. 59
mMj not be necessarj in his particular ease, that I hope jonr honor will not
act upon the written certificate of a physician, bat will satisfy yonr own judg-
ment as to the capacity of the juror to serve, from the personal examination of
the juror, and of the physician upon whose opinion he relies. They should
both appear before the court. Your honor should be satisfied from your own
examination, aided as far as it is possible for us to aid you, by cross-examina-
tion on the part of the counsel who appear for either the government or the
accused.
The Ck>UBT. I shall examine as I have done in all these cases, by putting
quesdons to them myself.
Mr. BsADLBY. There have now been seven jurors excused out of the twenty-
six. We want to get them before the pand is attempted to be selected for this case.
The Court. Is there any objection to thati
Mr. Bradlby. I believe there is no objection, sir.
The Court. A juryman has been sommoned in the place of Mr. Mattingly,
who waa excused, being disqualified by over age.
Mr. Bradlby. Then six only are to be summoned.
The Court. Gentlemen the marshal informs me that it will probably take
him until about one o'clock before he can have the parties here who will be
rammoned in the place of those who have been excused. If you have no ob-
jection we will take a recess until that time, and let these gentlemen who are
here, and who have some business to attend to, go until that time.
Mr. M BR RICK. Before your honor takes any action in the matter, I would
like to consult with Mr. Bradley in relation to something that may facilitate our
action after one o'clock.
After a brief consultation, Mr. Merrick said : What we were going to suggest
to your honor is this : That whilst the jury, of course, in accordance with the
suggestion of the court, can leave the room until the time indicated, we on both
Bides think that it will hasten the matter if the marshal, instead of simply
bringing in at one o'clock, seven jurors to supply the place of those excused,
would bring in about twenty, in view of the fact which has become apparent
that a great many will seek to be excused. One juror who is present has indi-
cated to your honor an excuse, which will have to be considered when he comes
upon his voire dire, and which will probably show him to be disqualified, and
we do not know how far that examination— on the voire dire — of the others
may thin the panel.
Mr. PiERREPONT. I think we quite agree to that, your honor, if it is within
the law, and I suppose it is, though I do not pretend to know about it.
The Court. 1 am rather doubtful about it.
Mr. Bradley. Your honor will pardon me, but by turning to the act of De-
cember, 1865, I think you will find an exposition.
The Court. Let us see what that act is, because this 7th section only gives
the power to order a sufficient number of jurors to make up the panel.
Mr. Bradley. You have ordered that, and now as I understand it, it is left
to the discretion of the court to summon as many more as may be necessary.
The Court. I am doubtful, Mr. Bradley, and I do not know whether we had
not better go on, unless there is something in that act, and examine these gen-
tlemen upon their voire dire, so as to get what you can from this panel which
has already been made up. I think that would be the legitimate mode of pro-
ceeding with this business.
Mr. Bradley. We cannot proceed, if your honor please, to select a jury until
the panel of twenty-six is complete. We have the right out of that twenty-six.
The Court. I see the act or 1865 does not bear upon this Question at all.
Mr. PiBRRBPONT. I have not, if your honor please, the slightest doubt of
tleur right to have the fullest panel, but there cannot certainly be any irregu-
larity m going on.
60 TRIAL OF JOHN H. 8URRATT.
3Ir. Mbbbick. We object to tbat We require tbe panel to be foil.
Mr. PiBRREPOXT. We have not a word to say if tbey require it-
The Court. Then there is no other course left but for the court to take a
recess until one o'clock.
The court thereupon took a recess until the hour named.
A few minutes after one o'clock the court was reconvened, when
The Court said : One of the parties who served the subpcena on Mr. Plant
yesterday, brings me this note:
"Washington, D.C, June 1, 1867.
" I certify that I have occasionally attended Mr. Greorge H. Plant with nephre-
tie, brought about by ^tigue and exposure. I would judge that the duties
of a juror would tend to aggravate his disease.
"JOHN C. RILEY, M. Dr
The Court. I do not know whether Mr. Plant is in the city or not.
The Marshal. No, sir; he is in Baltimore.
The Court. Mr. Moore hands me the following certificate:
«* Washington, D. C, June 13, 1867.
" This is to certify that Mr. W. W. Moore has been for many years a patient
of mine, and from my knowledge of his constitution and condition of health I
would regard him as unfit for performing the duties of a juror without the risk
of being himself injured by the confinement, and the peculiar duties which
would devolve upon him.
" W. P. JOHNSON, Af. D."
The Court. Upon examination of Mr, Moore I do not think that he would
be able to withstand the fatigue of a trial of this sort, and I purpose excusing
him. I have no doubt he would make a most excellent juryman, if he could
only stand the fatigue. He is therefore excused.
The Clerk then proceeded to call the names of the six additional jurors who
had been summoned during the recess.
William M. Shuster was called, but failed to respond.
Robert Ball was called, and responded.
Henry M. Knight was called, and responded.
John F. Ellis was called, and responded.
Samuel Fowler was called, but failed to respond.
Terrence Drury was called, and responded.
The Clerk. Four out of the six answer, your honor.
The Court. What are the names of the absent ones.
The Clbrk. Mr. Shuster and Mr. Fowler do not respond.
The Marshal. Mr. Shuster was served by copy. He was not at his house,
but his wife expected him there between twelve and one. He was served with
a copy, and it may be that he has not received it. As to Mr. Fowler, he was
served in person.
Mr. Bradley. There are two Mr. Samuel Fowlers; which one is it?
The Marshal. The banker.
The District Attorney. I feel it my duty to ask for an attachment against
Mr. Fowler.
The Court. Let the attachment issue.
Mr. Bradley. He will be here I am sure, for he is a law-abiding citizen.
The Marshal. I would here state, your honor, that Mr. Dole, for whom an
attachment was issued, is not to be found, and that Mr. Plant, for whom an at-
tachment was also issued, has gone to Baltimore.
The court then directed the clerk to call over the names of those who had
responded, and were present.
TRIAL OF JOHN H. BURRATT. 61
The Clerk proceeded to call as follows :
William B. Todd, William H. Tennej, John B. Elvans, Thomas Blagden,
Bilej A. Shimi, Richard M. HalL
Mr. Bradlbv. He has gone to get a certificate of attomej.
Thomas J. S. Perrj, Beuhen B. Clark, Joha Van Beswick, Zadok D. Oilman,
Joseph F. Brown, Zenas C Bobbins, Cornelius Wendell, Joseph Gerhardt.
Mr. Bradley. He is with his physician in the ante-chamber.
Horatio N. Easby, Thomas Berry, John H. Crane, William M. Shoster.
Mr. Bradley. He is not present.
Bobert Ball, Henry M. Knight, John F. Ellis-
The Clerk. Including those who have been summoned, but who are not here
at this moment, there are twenty-four, your honor.
Mr. Pibrrepont. Does your honor find that there would be any objection to
having an order made that some fifteen or twenty, or some larger number, be
subpoenaed, if we on both sides consent to iti We are all desirous of consent-
ing to that, either orally, or in writing.
Mr. Bradley. It will not appear of record, sir, how many are summoned,
if there are enough summoned to make up the panel.
Mr. PiERBBPONT. That is all we want on both sides.
The Clerk. O, yes, it will appear of record. The subsequent order to fill
the vacancies which have occurred, will appear.
Mr. Pierrepont. Would there be any error in it if it did so appear?
The Court. I fear there might be.
Mr. Pierrepont. Well, sir, we do not want any en*or. We only want to
show that we on both sides are anxious to facilitate the matter in any way we
can.
The Court. As I understand, all the jurors who have been properly sum-
moned answer, with the exception of two, Messrs. Dole and Plant, who are
returned non est.
Mr. Samuel Fowler being brought in at this stage of the proceedings, under
attachment,
The Court said : Mr. Fowler, you were attached for non-obedience to the
sommons of the court to be here at one o'clock.
Mr. Fowler. I meant no disrespect to the court, sir ; I intended to come in
time, but mistook the hour.
The Court. I suppose we will have to excuse you under those circum-
stances, as you are pretty near the time. (It being then half-past one. — Bep.)
The Court. You have twenty-two jurors, gentlemen, now in attendance for
this panel. You, therefore, require four more.
The Clerk. An attachment is out for two — Messrs. Dole and Plant.
The Court. Yes ; but those attachments cannot, in all probability, be served
to-day.
Mr. Merrick. The panel would be one short even were those who have been
attached here.
The Court. Yes, sir ; inasmuch as Mr. Moore has been excused since.
Mr. Merrick. We want one more, anyhow.
The Marshal. We can get him in twen^ minutes, I think.
William Morrison, J. Bussell Barr, and Jedediah Giddings next appeared in
court, in obedience to the summons of the marshal completing the panel of
twenty-six jurors.
Mr. Bradley. If your honor please, we are ready to proceed to empanel the
jniy. Before doing so, however, we think it our duty, in behalf of the prisoner,
to file our challenge to the present array. Your honor has virtually decided the
question, and we do not desire to take up any time in its argument. We simply
wish that it may be filed, so that it may be passed upon.
Mr. Bradley then handed to the clerk the following challenge:
62 TRIAL OF JOHN H. 8UBRATT.
" In the Supieme Conrt of the District of Columbia- The United States w .
John H. Surratt. In the Criminal Court, March term, 1867.
"And the said marshal of the District of Columbia, in obedience to the order
of the court, made in this cause on the 12th of June instant, this daj makes re-
turn that he hath summoned, and now hath in court here, twenty-six jnrorst
talesmen, as a panel from which to form a jury to try the said cause, and die
names of the said twenty-six jurors so returned being called by the clerk of said
court, and they having answered to their names as they were called, the said
John H. Surratt, by his attorneys, doth challenge the array of the said panel,
because he saith it doth plainly appear by the records and proceedings of the
court in this cause that no jurors have ever been summoned according to law to
serve during the present term of this court; that no panel has ever been lawfully
returned to this present term of the couit, and no names of jurors, duly and law-
fully summoned, have been placed in the box provided for in the fourth section
of the act of Congress, entitled, " An act providing for the selection of jurors to
serve in the several courts of the District," approved 16th June, 1862, on or
before the Ist of February, 1867, to serve for the ensuing year, wherefore he
prays judgment that the panel now returned by the said marshal, and now in
court here, be quashed.
"MERRICK, BRADLEY & BRADLEY,
''Attorneys for Surratt:'
After consultation on the part of counsel on behalf of the United States and
for the prisoner, the following names were presented to the court as having been
mutually agreed upon as the jurors in the case :
William B. Todd, John P. Elvans, Thomas Blagden, Richard M. Hall,
Thomas J. S. Perry, William H. Shuster, Z. D. Gilman, Horatio N. Easby,
Thomas Berry, Robert Ball, Samuel Fowler, and J. Russell Barr, all of whom,
except Mr. Barr, were directed to appear at the book to be sworn in as jurors.
Mr. Blagden, (one of the jurors.) I wie^h to repeat the objection that 1 made
this morning, that I feel myself unfit to act as juror in this case. I have both
formed and expressed an opinion upon it.
The Court. Have you formed a decided opinion ?
Mr. Blagdbn. I have done so, sir.
Mr. PiERREPONT. I hope your honor will ascertain whether this gentleman
has formed such an opinion that he would not be governed by the law and the
evidence as it may be brought before him. He has not heard any evidence in
the case.
The District Attorney. I may say, if your honor please, tliat this doc-
trine of the gentleman being disqualified to act as a juror because of bis having
expressed an opinion, should be the subject of inquiry as to whether he has
formed an opinion on all the evidence, and as to whether he would not be pre-
pared to decide according to the law and evidence.
The Court. If he is sworn on his voire dire I will try to ascertain that fact.
The District Attorney. We do not care to have that done. We are
willing to trust this gentleman in his judgment on the law and the evidence.
Mr. Blagden. If the court please, I have read a great deal upon this subject
and have formed my opinion very decidedly.
Mr. Fowler, (a juror.) That, also, is my case.
Mr. Gilman, (a juror.) And mine.
Mr. Perry, (a juror.) And mine; and besides, I am opposed to capital pun-
ishment.
Mr. Gilman. I, also, am opposed to capital punishment.
Mr. Pierrepont. Let me say to the court that we have agreed, upon both
sides, not to ask any of these gentlemen to be sworn upon their voir dire until
we believe they are such men as will render a verdict in accordance with the
TBIAL OF JOHK H. BUSRATT. 63
law and the eridenee. There has not been one word of evidence pabliahed,
ezeept 8nch as maj have appeared in the newspapers.
The OocRT. One gentleman says, however, he is conscientionslj opposed to
capital pnnisfament.
Mr. PiBBBBFONT. We should like to know whether his scmples would go
to the extent that he could not conscientiously bring in a verdict according to
the law anid the evidence.
The CorBT. That would be a proper test by which to ascertain the extent
of his conscientious convictions.
Mr. PiBBBBPONT. I wish these gentlemen would consider this Question a little
in the light of a duty to the public. The counsel on both sides have, with
more conrtesy towards each other, such as I have never seen in the whole
course of my experience, tried to get a jury of eminent citizens who were
honest, and who were above suspicion, against whose verdict nobody could raise
a whisper. We have earnestly desired to produce that result and had hoped
we had accomplished it. We think jurymen owe something to the community
in which they live.
Mr. Shustbb, (one of the jurors.) While appreciating the compliment given to
us, I think that probably some of us, and I most assuredly, have formed and
entertained deciaed opinions in regard to this case. I speak for myself, and
others, as the question has been discussed among those who are here as jurors.
Mr. PiBRBBPONT. Before proceeding further, I hope the court will ascertain
from the jurors who suggest conscientious scruples on the subject of capital
punishment, to what extent his conscientious scmples go.
Mr. Merrick. I hope I may do something to facilitate the obtaining of this
panel. A jury sitting in the case has but ve^y little to do with the con-
sequences of their verdict. They are sworn to find a verdict according to the
law and evidence. The sentence on their verdict is a matter which, as good
citizens, they have nothing to do with in their capacity as jurors. If they are
opposed to capital punishment, in their political relations to the government as
Citizens, they may exert their influence in having the law providing for capital
niiishment modified ; but as jurors, in the box, they have nothing to do
ut to render their verdict in accordance with the law and the evidence.
The Court, Still, when a person is called to be sworn as a juror in a capital
ca»e, if, on the one hand, he shall say that such are his conscientious scruples
that he could not, no matter how strong the evidence might be, render a veniict
of guilty, it seems to me that the court would not be justified in admitting that
juror to be sworn. While on the other hand, if he declared to the court that
while he has formed and expressed an opinion in relation to the guilt or inno-
cence of the party, which opinion it would not be possible or probable that any
evidence might overcome, such person would not, I think, be a proper person
to discharge the duties devolving upon him as a juror by the law.
Mr. GiLMAN, (a juror.) I have formed and expressed an opinion publicly.
I sm decidedly prejudiced in the case. I do not think any evidence I might
bear would change my view upon the subject.
Mr. Easbv (a juror.) I beg leave to say, with the permission of the court,
that I think it nothing more than fair that jurors be permitted to express their
opiuion upon this subject. This case has been discussed in the newspapers ;
the evidence given on the trial of the other conspirators in the assassination of
Mr. Lincoln has been published, and for myself I must confess that I am deci-
dedly biased in such a way that I do not feel that I could do justice in this
case ; whether I might do injustice to the prisoner, or to the public, is a matter I
cannot say ; but I do not feel that I am in such a condition of mind as to enable me
to 8it upon this jury. I do not feel like taking the life of this man in my hands.
I feel utterly disqualified, and 1 beg to protest against being compelled to sit
on the jury in this case. These gentlemen for the prosecution and defence have
I
64 TBIAL OF JOHN H. 8UBRATT.
arranged the matter to snit themselves, and have referred in a very complimen-
tary manner to those who have heen selected, hat while appreciating compli-
ments, we cannot say for ourselves that if we acquit this man we shall he per-
fectly satisfied with the verdict, or if we convict him we shall satisfy our own
conscience. For myself at least, I repeat, that I feel myself utterly disquali-
fied to sit upon this jury. I should feel that I was committing murder if I
should hring in a verdict of guilty, and I might feel if I brought in a verdict of
not guilty, that I was instrumental in putting forth a man upon the public who
was guilty of murder. I am not in a proper state of mind to try the case. If
the court chooses, however, to compel me to sit upon the jury under the cir-
cumstances ; of course I cannot help it, I should hear the evidence and endeavor
to bring in a verdict according to the law and the evidence, and although against
my own convictions of right and wrong. The responsibility will rest upon some
one else, not upon me.
The Court. After having heard what has heen said by the jurors, I do not
see any other course than to put each man upon his voire dire.
Mr. Bradley. That is our opinion upon both sides, we have done our best
upon both sides, and I think that at least we deserve credit for the spirit we
have manifested.
The Court. The counsel on both sides deserve great credit for the efforts
they have made on this occasion. The jurors summoned will now be exam*
ined in order upon their voire dire.
William B. Todd, sworn upon his voire dire, and examined as follows :
By the Court :
Q. Have you formed or expressed an opinion in regard to the guilt or inno-
cence of the prisoner at the bar, John H. Snrratt ?
A. To a certain extent I may have formed an opinion, I do not remember
having expressed an opinion.
Q. Would that opinion have such a influence upon your judgment that you
would not be able, upon the oath you have taken in consequence of such opinion,
whatever may be the extent of it, to render a fair, honest, and impartial verdict
upon the evidence adduced on both sides in the trial ?
A. I do not think it would.
Q. Have you conscientious scruples against rendering a verdict of guilty in
a case in which the punishment shall be death, provided the evidence should
warrant you in finding such a verdict ?
A. None at all.
The Court. Does the counsel for the United States wish to challenge this
juror.
The District Attorn k v. The court will remember that this question arose
a short time ago for the first time since the passage of the act of Congress giv-
ing to the United States Ave peremptory challenges. I then submitted whether
it was right to require the United States first to challenge a juror if it desires to
do so.
The Court. The law is silent upon that subject, and in this instance the rule
will be established to require the counsel to alternate in the order of their chal-
lenge.
No challenge having been made, Mr. Todd was accordingly sworn in as a
juror.
William H. Tbnney, duly sworn and examined upon his voire dire^ as fol-
lows :
By the Court :
Q. Have you formed or expresed an opinion in relation to the guilt or inno-
\ of the prisoner at the bar, John H. Surratt ?
TRIAL OP JOHN H. 8DERATT. 65
A. I have.
Q. You have both formed and expressed an opinion ?
A. I have.
Q. Under the oath 70a have taken, do you say to the court that that opinion,
80 formed and expressed, would bias or prejudice your judgment in rendering a
verdict as to the guilt or innocence of the prisoner after having heard all the tes-
timony in the case ?
A. I think I could give as good a verdict as if I had never heard of Surratt.
Q. Have you conscientious scruples against rendering a verdict of guilty
where the punishment is death, provideJ the evidence be such as would satisfy
you of the guilt of the party accused ?
A. I have none.
Q. But you say you have formed and expressed an opinion as to the guilt or
imiocence of the party accused ?
A. I have.
By the Distbict Attohnbv
Q. Will you state when and to whom you have expressed that opinion ?
A. I have expressed the opinion generally, in conversation with my family.
Q. Upon what evidence was this opinion based ?
A. Not upon any evidence, but upon common report, such as Surratts leav-
ing the country.
Q. That is all ?
A. That is all. Not upon any knowledge of the facts of the case, or from
hearing any evidence in relation to it. Upon common report, such as Surratts
escaping from the country.
By Mr. Bbadlbv :
Q. Have you not talked very freely on the subject, and expressed your
opinions very decidedly ?
A. I do not think I have expressed any opinion publicly. It has been in
casual conversation with my family. It may be possible that I have expressed
it to others than to members of my family, but I do not think I have.
The CouBT. I think, under the ruling of Judge Marshall, in the case of Burr,
tb is juror is exceptionable.
The Distbict Attoknev. I hope, before ruling definitely upon that question,
tbe court will hear argument upon it. I had prepared myself upon this ques-
tion, knowing it to be one of great importance. In a case of such notoriety as
this, I suppose there is hardly an intelligent man in the whole country who has
not, to some extent, formed and expressed an opinion. I hope your honor will
not consider it presumption on my part, in asking to be heard upon it.
The CoLBT. I have no pride of opinion upon the subject, and am ready to
hear argument upon it. It will, perhaps, be better to go through with the ex-
amination of the other jurymen, and let this question be argued to-morrow. Mr.
Tenney will stand aside for the present.
John B. Elvans, duly sworn and examined upon his voire dire, as follows :
By the Coubt :
Q. Have you formed or expressed an opinion in relation to the guilt or inno-
cence of the prisoner at the bar, John H. Surratt ?
A. I have.
Q. You have both formed and expressed an opinion ?
A. Yes, sir.
^. Under the oath you have taken, do you say to the court that that opinion,
>o formed and expressed, would bias or prejudice your judgment in rendering a
verdict as to the guilt or innocence of the prisoner, after having heard all the
testimAfiv in til A rnjiA ?
$6 TRIAL OF JOHN H. 8URBATT.
A. Your honor will allow me to eay that I have expresBed myself bo deci-
dedly, and in such a manner as would lead me to fear the ImpresBlonB of the
community as to my ability or disposition to render a fair verdict. 1 believe,
personally, that I am sufficiently dispassionate to be able to render a verdict in
accordance with the evidence. But I fear the effect of the public manner in
which I have spoken of this particular case on the community as to my dispo-
sition to give a fair verdict.
Q. Have you conscientious scruples against rendering a verdict of guilty in a
case in which the punishment is death, provided the evidence shall satisfy you
of the guilt of the party 1
A. None at all.
The Court. You will stand aside for the present.
Thomas Blagdbn, duly sworn and examined upon his voire dirct as follows:
By the Court :
Q. Have you formed or expressed an opinion in relation to the guilt or inno-
cence of the prisoner at the bar, John H. Surratt?
A. I have.
Q. You have both formed and expressed an opinion ?
A. I have.
Q. Under the oath you have taken, do you say to the court that that opinion,
as formed or expressed, would bias or prejudice your judgment in rendering a
verdict as to the guilt or innocence of the prisoner, after having heard all tiie
testimony in the case ?
A. I should fear it would.
Q. Have you conscientious scruples against rendering a verdict of guilty in a
case where the punishment is death, provided the evidence shall warrant you
in that finding ?
A. I have not.
The Court. You may stand aside for the present.
Riley A. Shinn, duly sworn and examined upon his voire dire, as follows :
By the Court :
Q. Have you formed or expressed an opinion in relation to the guilt or inno-
cence of the prisoner at the bar, John H. Surratt ?
A. I have.
Q. You have both formed and expressed an opinion 1
A. Yes, sir.
Q. Under the oath you have taken, do you say to the court that that opinion,
as formed and expressed, would bias or prejudice your judgment in rendering a
verdict as to the guilt or innocence of the prisoner, after having heard all the
testimony in the case 1
A. I fear it would, though I do not know what the evidence may be.
Q. Have you conscientious scruples against rendering a verdict of guilty in a
case where the punishment is death, provided the evidence shall warrant yoa
in such finding?
A. Not in the least.
By the District Attorney :
Q. Where did you express this opinion ?
A. While the trial was going on at the arsenal.
Q. Upon what endence or what information was this opinion, which you ex-
pressed, based?
A. From reading the evidence on the trial of the others.
Q. Where did you read that evidence ?
TRIAL OF JOHN H. 8URSATT. 67
A. In a book published by the government. I have one of those books.
The Goi}RT. You may stand aside for the present.
Richard M. Hall, duly sworn and examined upon his voire dire, as follows :
By the Court :
Q. Have you formed or expressed an opinion in relation to the guilt or inno-
cence of the prisoner at the bar, John H. Surratt ?
A. Yes, sir; I have.
Q. You have both formed and expressed an opinion ?
A. Yes, sir.
Q. Under the oath you have taken, do you say to the court that that opinion,
as formed and expressed, would bias or prejudice your judgment in rendering a
verdict as to the guilt or innocence of the prisoner, after having heard all the
testimony in the case ?
A. There are some facts in connection with the case that 1 think would very
strongly prejudice my mind.
Q. Have you conscientious scruples against rendering a verdict of guilty
in a case where the punishment is death, provided the evidence is such as to
warrant that finding?
A. I have not.
By the District Attorney :
Q. Do you suppose that if the evidence were entirely different from what you:
have seen, your mind has been so far affected by what you have read that yout
would be unable to do justice in this case ?
A. It has not been altogether upon the evidence I have read that I have-
formed an opinion about it. There are circumstances that always attend certain,
occurrences which produce their effect, and there are some circumstances in con-
nection with this case that have constantly, from the beginning, warped my judg-
ment. I do not know whether I would be able to overcome them. It would,
have to be pretty strong evidence.
Q. Do you mean to say that your prejudices and feelings have been so ext-
cited that you would be unabl<} to decide according to the law and the evidence,,
upon your oath as a juror 1
A I would, if compelled to sit as a juror, listen to the facts and to the evi-
dence, but I have no hesitancy in saying that my judgment would be greatly
iDflaenced by circumstances.
By Mr. Bradlby:
Q. That is to say all the evidence would come to you through a ])rejudiced.
medium ?
A. Yes, sir.
The Court. You may stand aside for the present.
Thomas J. S. Pbrry, duly sworn and examined upon his wire dire, as fbl-
Wb:
By the Court:
Q. Have you formed or expressed an opinion in relation to the guilt or inno-
cence of the prisoner at the bar, John H. Surratt?
A. I think I did at the time of the trial, two years ago.
Q. You have both formed and expressed an opinion ?
A. Yes, sir.
Q. Under the oath you have taken do you say to the court that that opinion,
^formed and expressed, would bias or prejudice your judgment in rendering a
verdict as to the guilt or innocence of the prisoner, after, having heard all the
teatimony in the case I
68 TBIAL OF JOHN H. SUBB^TT.
A. I do not think it would.
Q. Have yon conscientious scruples against rendering a verdict of guilty
in a case wLere the punishment is death, provided the evidence shall satisfy
you of such finding f
A. I have.
Q. Have you such scruples as would prevent you from rendering a verdict
of guilty in such case?
A. I think I have.
The GouDT. You are discharged.
Reuben B. Clarice, duly sworn and examined upon his voire dire, as fol-
lows:
By the Coubt :
Q. Have you formed or expressed an opinion in relation to the guilt or inno-
cence of the prisoner at the bar, John H. Surratt ?
A. I have, sir, decidedly.
Q. You have both formed and expressed an opinion ?
A. Yes, sir.
Q. Under the oath you have taken, do you say to the court that that opinion,
as formed and expressed, would bias or prejudice your judgment in rendering
a verdict as to the guilt or innocence of the prisoner, after having heard all the
testimony in the case ?
A. I think it would influence my opinion.
Q. Have you conscientious scruples against rendering a verdict of guilty in
a case where the punishment is death, provided the evidence shall satisfy you
of such finding ?
A. None at all.
By the Distbict Attorney :
Q. When was that opinion formed and expressed ?
A. It was formed in the early part of the trial below there.
Q. Upon what evidence or information was this opinion based ?
A. From common rumor, and from what I could gather by being at the
court below.
Q. How often did you attend that trial ?
A. About three or four days, I judge.
Q. Did you read the evidence ?
A. I read the evidence.
Q. The whole evidence on that trial ?
A. I read it from newspaper reports as published in the Intelligencer.
The Court. You are excused from further attendance.
John Van Hiswick, duly sworn and examined upon his voire dire, as follows:
By the Court :
Q. Hac^ jou formed or expressed an opinion in relation to the guilt or inno-
cence of John H. Surratt, the prisoner at the bar ?
A. I am not aware that I ever have either formed or expreBsed an opinion.
Q. Have you any conscientious scruples against rendering a verdict of guilty
in a case in which the punishment is death, provided the evidence shall warrant
you in such a finding ?
A. I have not.
By Mr. Pierrbpont:
Q. Do youilive in Washington ?
A. Ida
Q. Were you here at the time of the former trial of the conspirators ?
A. I was.
TRIAL OF JOHN H 8URBATT. 69
Q. Did yon read the evidence on that trial ?
A. I believe I did.
Q. Did yoa express or form any opinion as to the effect of it ?
A. None, so far as the prisoner is concerned.
Q. And jon have not now an opinion as to his guilt or innocence ?
A. I have no decided opinion.
Q. You have not said anything about it ?
A. I am not aware of having said anything in regard to his guilt or inno-
cence.
By the District Attorney :
Q. You have no decided opinion upon the subject at all ?
A. None, as to his guilt or innocence.
Q. Have you formed any opinion in regard to the guilt or innocence of the
other conspirators 1
Question objected to by counsel for defence.
Mr. PiERREPONT. If the court please, we wish to argue that objection, if it is
insisted upon. The prisoner is inaicted as a conspirator with others. If he is
not guilty with others, he is not guilty at all.
Mr. Merrick. It would be exceedingly difficult to get a jury of men who
had not formed or expressed an opinion as to the guilt or innocehce of those
persons who are charged with the murder of the late President of the United
States, and of the guilt or innocence of the other parties named in the indict-
ment as conspirators with him is permitted to be drawn out. I apprehend you
could not get a jury in this District, and scarcely one in the United States. I
presume there is scarcely a gentleman in the United States who has not formed
and expressed an opinion that Booth shot Lincoln. I apprehend there are very
few who have not formed or expressed an opinion that the mother of the pris-
oner at the bar suffered death without competent testimony to convict her, and
eo we might go through in an inquiry in relation to all the others. To allow
this question would entirely prevent the empannelling a jury. The question
for this jury to try, is, according to the indictment, whether or not John H.
Sarratt is guilty of the murder of Abraham Lincoln. The indictment charges
that this deed is the result of a conspiracy between various parties ; that the
prisoner at the b.-ir was one of the conspirators, and that he committed the
murder. The parties summoned as jurors may entertain the opinion that two,
three, four, or five of the others charged in the indictment as conspirators, did
conspire, and at the same time may not have formed any opinion at all as to
whether or not the prisoner at the bar was the sixth conspirator. Or the party
may entertain the opinion that the prisoner at the bar was in a conspiracy of
gome kind or other, or in the conspiracy to murder the President of the United
States, and may have formed no opinion as to whether, in point of fact, the
prisoner did commit the murder. I therefore submit to jour honor that the
inquiry made by the District Attorney, is an inquiry relating to matters beyond
the limit of investigation, for the purpose of ascertaining the qualifications of a
JMor.
Mr. PiBRRBPONT. If your honor please, before we knew in what mode we
\ i>hoii1d have to meet this question of challenge, the question received the consid-
\ eration of my learned friend, the District Attorney, with myself and his associate.
We gave it a very careful examination, and we came to the conclusion founded,
^e believe, upon competent authority, that this was a proper question to be
uked and answered, in order to get at the qualification of a juror in a case of
this kind under such an indictment. The reason urged by my learned friend
^mst it is, that he believes, I do not know but that, he asserts, that there are
'ery few in the United States who do not believe Mrs. Surratt was illegally ex-
cited. Therefore we could not get a jury competent to try the prisoner at the
W, if this question is allowed to be put.
70 TRIAL OF JOHN H. SURRATT*
Mr. Merrick. My brother will allow me to say that he did not state my
entire propopition. I said there were few intelligent persons in the United
States who had not formed an opinion upon the qnestion of Booth'fl participa-
tion in the killiDg* of Lincoln, and tl^ere were also, I presumed, but few persons
who had not formed an opinion that Mrs. Surratt had been execated upon
insufficient evidence.
Mr. PiERREPONT. Precisely; that is the very statement, except that my
friend has made it a little stronger than I did. I did not intend to overstate it,
as there is nothing gained by over statement, but it seems I did not come up to.
the mark. My friend urged this reason on the question of law about the adr
missibility or propriety of the question propounded to the juror, as to whethe
your honor should exclude the question. Now, I do not suppose that is any
reason at all in law, or that your honors will give it a moment's considera-
tion. Both sides of this case have cei-tainly acted very fairly. I have no com-
plaint whatever to make of my learned friends. They have acted like gentle-
men, and I think we have tried to act honestly on both sides ; that we have
tried to get an honest and impartial jury. We have done all that we could, and
have exhausted our power, and now find ourselves thrown back upon the law.
We have got to take that, and we intend to take it. Wherever it may lead us,
however long it may take us to get at it, we intend to pursue it. We have pre-
pared ourselves upon this very question, and now, if your honor please, if you
are not entirely familiar with the indictment, it will be necessary for us to bring
it into court. The indictment charges the prisoner at the bar with having en-
tered into a conspiracy with other parties — Mrs. Surratt, Booth, Herold, Payne,
&c. — mentioned by name. Now, then, if a juror comes here and says he does
not believe these other conspirators were guilty, there could not, by any possi-
bility, be any guilt upon the part of this party, because he is only charged as a
conspirator with other persons, and if a juror has made up his mind in such a
way as that, the evidence will not change it ; that the other parties charged as
conspirators in this indictment with the prisoner were innocent, then he is not
in a frame of mind such as will qualify him to act as a juror, because, having
expressed that opinion, it is utterly impossible for him to find the prisoner guilty.
The District Attorney. In addition to the point which has been suggested
by my learned colleague, that this question is entirely relevant to the indict-
ment which char<;es the prisoner at the bar with being engaged in a conspiracy
with others named, I will suggest, that if a juror has expressed an opinion in re-
gard to any of the parties named as conspirators in the perpetration of the crime
alleged in the indictment, he has expressed an opinion on a part of the case, and
I may add, in regard to a material part of the case — I think it may so affect the
mina of the juror that he will not be prepared to form an impartial judgment,
and he is therefore an incompetent juror upon that ground. Aloreover, not only
does this indictment charge that the prisoner co-operated with others in the per-
perpetration of the offence named, but it distinctly alleges, with others to the
jurors unknown. Surely, then, if the juror has expressed an opinion in regard
to the guilt or innocence of the one, does he not by implication, however he may
not in 80 many words mention the name of the prisoner, express some opinion in
regard to his guilt or innocence. In regard to the character of the offence charged
against him in the indictment, if the juror says, "although 1 may believe (by
way of illustration) that the prisoner did commit a certain crime, my opinion is
that he is not guilty as indicted,'' is he a competent juror ? If the party is not
guilty as indicted, however great the crime he may have committed, he is not
guilty, and under the law cannot be punished. The statement of this juror
is, that he has formed and expressed an opinion which goes to the guilt or
innocence of (he accused as indicted. I shall have something to say of this
hereafter, but I submit that such a statement disqualifies a juror. Again,
if your honor please, you observe by the act of Congress, March 3, 1865,
TRIAL OP JOHN H. 8UBRATT. 71
) 3 Stat, at Large, p. 500, section 2, the government of the United States is
allowed €ve peremptory challenges, and the accused twenty. It provides
that in addition to the challenges of the array, or panel, individual jurors
for eatise or favor shall he tried by the court without the aid of triers. Your
honor, then, without the aid of triers, shall determine whether there id good
cause for challenging the jurors. If your honor please, the question of fact
which was submitted to the decision of the trier is transferred by express legis^
lation to the court ; and was it ever heard that counsel are precluded from
uking any question which may be calculated to elicit the fact, or tending to
instruct the mind of the court in regard to the subject-matter of inquiry ? Yon
are the trier as to whether this is an impartial juror. I submit that you cannot
do otherwise than to allow the counsel on both sides to ask any question tend-
ing to elicit the state of mind in which that person is in regard to the issue which
would be submitted to him if sworn as a juror. Now, is not the guilt or inno-
cence of the co-conspirators a material fact 1 Is it not relevant ? And if so,
however remotely relevant the question submitted to your honor, we have the
right to elucidate the facts upon careful examination. The examination in chief
has been conducted by your honor ; your honor has submitted certain questions
to this juror, and his answers may satisfy your honor's mind that he is a compe-
tent or incompetent juror; your honor is the tribunal before which that question
of fact is to be tried ; you are the judge and jury both ; but you will allow us to
pursue oar cross-examination as we think best, being only restrained by matters
which are relevant If I should ask this juror an entirely irrelevant question, hav-
ing no connection with the case, you would properly close the door upon me ; but
will your honor say that the co-conspirators with whom this prisoner is alleged
in the indictment to have co-operated are not connected with the very matter we
now propose to investigate 1 Surely not. And therefore we have the right to
ask these questions ; and for what purpose ? It would be a brutumfulmen for
this act of Congress to make a court a trier if we are not permitted to ask ques-
tions tending to develope good cause of challenge in cases where good cause of
challenge may be shown upon a cross-examination. My object is merely to
enable your honor, by cross-examination, to determine whether this juror is
qualified or not. I concur with the learned counsel who spoke in behalf of the
prisoner, that it would be exceedingly difficult to empanel a jury if the principle
enunciated by your honor is correct. Your honor, I am sure, would not charge
me with presumption for asking to be heard with reference to the question of
such great importance before making your final decision ; but, sir, I do must
respectfully submit that the mere forming and expressing an opinion by a juror
does not necessarily disqualify him.
Mr. Bradlby. That, however, is not the question under discussion now.
The District Attorney. I know that is not the question, but I referred to
it incidentally. We surely have a right to ask a juror a question which will
bring before the mind of the court, either directly or indirectly, whether or not
this juror has, in point of fact, formed and expressed an opinion. My desire is
to enlighten the judgment of the court in reference to this matter.
Mr. Bradlby. I do not exactly understand, from the argument of the coun-
sel on the other side, what it is that we are going to try. I had read the indict-
ment with some care, and, until what has fallen from my learned brothers on the
other side to-day, I supposed I understood for what offence we are to be put on
trial ; but after what has been said, I am ignorant, as my client is, for what
offence be is to be tried. But I will assume that their understanding of the
indictment is just, and that he is on trial for conspiracy, and that he is on trial
for murder. On the question of his guilt or innocence of either of these a juror
has been interrogated ; and he has formed no opinion whether he is guilty of
murder, and he has formed no opinion as to whether he is guilty of conspiracy,
72 TRIAL OF JOHN H. SUBRATT.
He has answered tLese questions distinctly ; but now be is asked wbetber be
bas formed an opinion as to wbetber otber people were engaged in it or not!
Are we to be tried for tbat 1 Is that a matter on wbicb we must know whether
a juror has formed an opinion ? Suppose he believes that other people are guilty,
or that other people are innocent ; can they throw him out for that reason ?
Certainly not ; and they cannot ask him the question. They can only ask him
whether he has formed and expressed an opinion as to the guilt or innocence of
the accused. The juror bas answered tbat question distinctly in the negative;
and now, can you ask him the question whether he has formed or expressed an
opinion as to the guilt or innocence of anybody else ?
Mr. PiRRREPONT. I suppose we can when he is charged with them.
Mr. Bradley. The question is whether he was connected with them, not
whether they were guilty. The juror bas answered that be bas formed no
opinion as to whether be was connected with them, and that is the only question
that can be put.
I am enlightened again, in another point of view, by this statute to which
reference has been made. My learned brethren know perfectly well tbat before
tbat statute, under the common law, the court was the trier of the fact as well
as the adjudicator of the law. It was only when triers were demanded that the
question of fact was turned over to triers for decision. Until they were demanded
the judge passed upon both the law and the facts; and the only effect of the
statute was to so modify the law as not to permit the question of fact to be
referred to triers.
The Court. I suppose the intention of the law was to get rid of triers when
challenge was made for favor.
Mr. Bradley. Certainly, for favor or for cause. The party had the right to
demand triers, but the court would decide unless they were demanded. Is there
any change in the mode of conducting the investigation ? Did any human be-
ing ever hear before when a man is called as a juror and the proper question u
put to him by the court, that the counsel on either side may cross-examine himf
1 confess that I never heard of the practice before.
Mr. PiRRRBPOiNT. I never heard the contrary, and I have known of 50
cases at the New York bar.
Mr. Bradley. Then I thank fortune I do not belong to the New York bar.
I have heard your honor upon the bench say time and again, ** This bas gone
far enough. I think we can risk him." You have always stopped an exami-
nation of a juror just as soon as it bas proceeded to the point of ascertaining
whether he has formed or expressed an opinion as to the guilt or innocence of
the prisoner. But that a juror may be put upon bis cross-examination as to
whether he is eligible or not, I never heard before.
The question that it is now proposed to ask is unnatural and irrelevant. It
is unnatural and irrelevant whether a man has expressed or formed an opinion
as to the guilt of other parties charged with the murder of the President. I do
not think the question is admissible in any point of view, because, when you
come to examine the indictment, there is no such question to be tried by a jury.
It is inadmissible because the charge to be tried by this jury is, wbetber the
accused is guilty of the murder of the President. When your honor comes to
examine the indictment, with great respect to my friends on the other side, I
submit that any one with common sense who reads it, will say that the charge
is murder of the President, and tbat the matter of the conspiracy is merely
thrown in.
Mr. PiERRBPONT. The whole thing is conspiracy to murder, and in a con-
spiracy to murder all are principals.
Mr. Bradley. That may be New York law, but it is not law here.
Mr. PiERREPoNT. We shall desire to bring in the law.
The Court. I shall ask gentlemen to bring in their authorities and I will
then decide it.
TBUL OF JOHN H. 8URRATT. 73
Mr. Mrbbick. I alluded the other day, iDcideDtally, to the fact that the act
of 1854 was at least liable to the constraction, that unless the panel is completed
by Saturday night the new term will have commenced and this case could not
be tried. I hope, therefore, the court will not adjourn now, but will>go on until
all these jurors shall have been examined.
Mr. Bbadlby. The new term commences at 10 o'clock Monday morning, and
we may sit until that time if we please.
Mr. Mbbbick. That is true, but Sunday is a dies nan juridims.
The CouBT. Gentlemen may bring in their authorities and I will decide this
question to-morrow morning. In the meantime the witness may stand aside,
tnd the examination of others may be proceeded with.
Z. D. Oilman, duly sworn and examined upon his voire dire, as follows :
By the Coubt :
Q. Have you formed or expressed an opinion in relation to the guilt or inno-
cence of the prisoner at the bar, John H. Surratt ?
A I have formed and expressed an opinion.
Q. Tou have both formed and expressed an opinion ?
A, Yea, sir.
Q. Under the oath you have taken, do you say to the court that that opinion,
as formed and expressed, would bias or prejudice your judgment in rendering a
verdict as to the guilt or innocence of the prisoner, after having heard all the
testimony in the case ?
A. I fear it might.
Q. Have you conscientious scruples against finding a verdict of guilty in a
case where the punishment is death, provided the evidence be such as to satisfy
jou of the correctness of that finding ?
A. I have.
By Mr. Bbadlby :
Q. Do you mean to say that you could not find a verdict of guilty in a
capital case, although you were satisfied the evidence warranted it ?
A. 1 could find a verdict of guilty, I suppose.
By the Coubt :
Q. That is the case I put to you, whether you have cortscientious scruples
such as would prevent you from saying a man was guilty of a capital offence, if
the evidence justified that finding?
A. I could say that.
Q. And you could find a verdict of guilty ?
A. Yes, sir.
The Coubt. You may stand aside for the present.
Joseph F. Bbown, duly sworn and examined upon his voire dire, as follows :
By the Coubt :
Q. Have you formed or expressed an opinion in relation to the guilt or
innocence of the prisoner at the bar, John H. Surratt 1
A. Yes, sir ; frequently.
Q. You have boih formed and expressed an opinion ?
A. Yes, sir.
C^. Under the oath you have taken, do you say to the court that that opinion,
M loroied and expressed, would bias or prejudice your judgment in rendering a
Verdict as to the guilt or innocence of the prisoner, after having heard all the
testimony in the case ?
A. I think it should not, but I would be afraid to trust myself.
Q. Have you conscientious scruples against rendering a verdict of guilty in a
ctae punishable with death, provided the evidence justified such finding?
74 TRIAL OF JOHN H. 8URBATT.
A. None, whatever.
The Court. You may stand aside for the present.
Zbnas G, Bobbins, dulj sworn and examined upon his voire dire, as follows:
Bj the Court :
Q. Have you formed or expressed an opinion in relation to the guilt or
innocence of the prisoner at the bar, John B^ Surratt?
A. I have.
Q. You have both formed and expressed an opinion ?
A. Yes, sir.
Q. Under the oath you have taken, do you say to the court that that opinion,
as formed and expressed, would bias or prejudice your judgment in rendering a
verdict as to the guilt or innocence of the prisoner, after having heard all the
testimony in the case ?
A. No, sir; I could not admit that, still m view of my repeated and strong
expressions on the subject of the guilt of the prisoner at the bar, and his
associates, I think it would be unfair to the prisoner to have me on the jury.
Q. Have you conscientious scruples against rendering a verdict of guilty in
a case punishable with death, provided the evidence justified such finding I
A. Not any.
The Court. You are excused from further attendance.
Cornelius Wendell, duly sworn and examined upon his voire dire, as
follows :
By the Court :
Q. Have you formed or expressed an opinion in relation to the guilt or
innocence of John H. Surratt, the prisoner at the bar ?
A. I have both form jd and expressed.
Q. Under the oath }ou have taken, do you say that the opinion, thus formed
and expressed by you, would bias or prejudice your judgment in making up a
verdict as to the guilt or innocence of the prisoner, after having heard all the
testimony in the case ?
A. I feel sure it would.
The Court. You are discharged from further attendance.
Joseph Gbrhardt, duly sworn and examimed upon his voire dire, as follows :
By the Court :
Q. Have you formed or expressed an opinion in relation to the guilt or
innocence of the prisoner at the bar, John H. Surratt ?
A. I have.
Q. You have both formed and expressed an opinion ?
A. Yes, sir.
Q. Under the oath you have taken, do you say to the court that that opinion,
as formed and expressed, would bias or prejudice your judgment in rendering a
verdict as to the guilt or innocence of the prboner, after having heard all the
testimony in the case ?
A. I think it would.
Q. Have you conscientious scruples against rendering a verdict of guilty ia
a case punishable with death, provided the evidence justified such finding?
A. I have not.
The Court. You are discharged from further attendance.
Horatio N. Easby, duly sworn and examined upon his voire dire, as follows:
By the Court :
Q. Have you formed or expressed an opinion in relation to the guilt or inno-
cence of the prisoner at the bar, John H. Surratt?
TBIAL OF JOHN H. 8URRATT. 75
A. I have, sir.
Q. You have both formed and expressed an opinion t
A. Both formed and expressed.
Q. Under the oath jou nave taken, do you say to the court that that opinion,
as formed and expressed, would bias or prejudice your judgment in rendering a
verdict as to the guilt or innocence of the prisoner, after having heard all the
testimony in the case ?
A. Your honor will permit me to say, that ever since the conspiracy, which
culminated in the murder of Lincoln, my feelings have been so excited against
every person connected with that conspiracy, however remotely, that I think it
would oe perfectly unfair and unjust to have the life of this party placed in my
hands, and. therefore, I do not think I could give an unbiased opinion in this
case.
The Court. You are discharged from further attendance.
Thomas Berry, duly sworn and examined upon his voire dire, as follows:
By the Court:
Q. Have you formed or expressed an opinion in relation to the guilt or inno-
cence of the prisoner at the bar, John H. Surratt ?
A. I have.
Q. You have both formed and expressed an opinion ?
A. Yes, sir.
Q. Under the oath you have taken, do you say to the court that that opinion,
as formed and expressed, would bias or prejudice your judgment in rendering a
verdict as to the guilt or innocence of the prisoner, after having heard all the
testimony in the case?
A. It would not.
Q. Have you conscientious scruples aeainst bringing in a verdict of guilty
in a case punishable with death, provided the evidence shall satisfy you of the
propriety of such finding?
A No, sir.
The Court. You may stand aside.
John H. Cranb, duly sworn and examined upon his voire dire, as follows:
By the Court:
Q. Have you formed or expressed an opinion in relation to the guilt or inno-
cence of the prisoner at the bar, John H. Surratt ?
A. I have.
Q. You have both formed and expressed an opinion ?
A. Both formed and expressed.
Q. Under the oath you have taken, do you say to the court that that opinion,
aa formed and expressed, would bias or prejudice your judgment in rendering a
verdict as to the guilt or innocence of the prisoner, after having heard all the
testimony in the case ?
A. I do not think it would. I should feel bound to bring in a verdict ac-
cording to the law and the evidence.
Q. Have you conscientious scruples against bringing in a verdict of guilty in
a case punit«hable with death, provided the evidence justified such finding?
A. I will state to your honor that I am very strongly opposed to capital pun-
i^bment, and I should have to be satisfied, beyond a doubt, of the guilt of a
prisoner before 1 could bring in a verdict of guilty. If there was a shadow of
^oubt, I should feel bound to give him the benefit of that doubt. I would not,
Wever, say that I would not bring in a verdict according to the evidence.
The Court. You may stand aside for the present.
William M. Shuster, duly sworn and examined upon his voire dire, as fol-
lows:
76 TRIAL OF JOHN H 8URRATT.
By the Court;
Q. Have you formed or expreseed an opinion in relation to the gdlt or inno-
cence of the prisoner at the har, John H. Sorratt?
A. I have, sir.
Q. Yon have both formed and expressed an opinion ?
A. I have.
Q. Under the oath you have taken, do you say to the court that that opinion,
as formed and expressed, would bias or prejudice your judgment in rendering a
verdict as to the guilt or innocence of the prisoner, after having heard all the
testimony in the case ?
A. If I were obliged to sit upon a jury I would endeavor to render a verdict
according to the evidence, but at the same time I feel that I have formed and
expressed an opinion, and that I would go into the jury-box somewhat preju-
diced ; that I would have something to overcome. Having entertained a very
unfavorable opinion toward the prisoner, I would not like to go into the jury-
box without stating that fact.
The Court. 1 think that comes right to the case decided by Chief Justice
Marshall, that a witness must start with a fair chance on either side. You are
discharged from further attendance on the court.
Henry M. Knight, duly sworn and examined upon hh voire dire, as fol-
lows :
By the Court :
Q. Have you formed or expressed an opinion in relation to the guilt or inno-
cence oi the prisoner at the bar, John H. Surratt ?
A. I have.
Q. You have both formed and expressed an opinion 1
A. Both formed and expressed an opinion.
Q. Under the oath you have taken, do you say to the court that that opinion,
as formed and expressed, would bias or prejudice your judgment in rendering a
verdict as to the guilt or innocence of the prisoner, after having heard all the
testimony in the case ?
A. I believe it would.
The Court. You are discharged from further attendance.
Robert Ball, duly sworn and examined upon his voire dire, as follows:
By the Court :
Q. Have you formed or expressed an opinion in relation to the guilt or inno-
cence of the prisoner at the bar, John H. Surratt ?
A. I have probably given some expression of an impression formed upon my
mind from common rumor, but I do not think I have given any decided expres-
sion of opinion, nor have I formed any very decided opinion.
Q. From what you have seen and what you have heard in regard to these
rumors, do you believe you would be able to render a fair and impartial verdict,
after having heard all the testimony in the case ?
A. It is my impression I could do justice to the prisoner as well as to the
State.
Q. Have you conscientious scruples against rendering a verdict of guilty in a
case punishable with death, where the evidence would justify such finding?
A. None, whatever.
The Court decided Mr. Ball to be a competent juror, and no challenge bjing
made, he was accordingly sworn as such.
John F. Ellis, duly sworn and examined upon his voire dire, as follows :
By the Court:
Q. Have you formed or expressed an opinion in relation to the guilt or inno-
of the prisoner at the bar, John H. Surratt ?
TBUL OF JOHN H. 8URRATT. 77
A. I ha\re, sir.
Q. You have both fonned and expressed an opinion I
A. 1 have.
Q. Under the oath you have taken, do jon say to the court that that opinion,
as formed and expressed, would bias or prejudice your judgment in rendering a
Terdict as to the guilt or innocence of the prisoner, after having heard all the
testimony in the case ?
A. It would.
The Court. You are discharged from further attendance.
Samuel Fowlbr. duly sworn and examined upon his voire dirCf as follows:
By the Court:
Q. Have you formed or expressed an opinion in relation to the guilt or inno*
cence of the prisoner at the bar, John H. Surratt 1
A. I have.
Q. You have both formed and expressed an opinion ?
A. Yes, sir ; on several occasions.
Q. Under the oath you have taken, do you say to the court that that opinion,
as formed and expressed, would bias or prejudice your judgment in rendering a
verdict as to the guilt or innocence of the prisoner, after having heard all the
testimony in the case?
A. It would.
The Court. You are discharged from further attendance.
Tbrrbncb Drury, duly sworn and examined upon his voire dire, as follows:
By the Court:
Q. Have you formed or expressed an opinion in relation to the guilt or inno-
cence of the prisoner at the bar, John H. Surratt ?
A. I have.
Q. You have both formed and expressed an opinion ?
A. Both.
Q. Under the oath you have taken, do you state to the court that that opinion,
as formed and expressed, would bias or prejudice your judgment in rendering a
verdict as to the guilt or innocence of tlie prisoner, after having heard all the
testimony in the case ?
A. I am satibfied it would.
The Court. You are discharged from further attendance.
William H. Morrison, duly sworn and examined upon his voire dire, as fol-
lows:
By the Court:
Q. Have you formed or expressed an opinion in relation to the guilt or inno-
cence of the prisoner at the bar, John H. Surratt ?
A. I have.
Q. You have both fonned and expressed an opinion ?
A. Yes, sir ; very decidedly.
Q. Under tlie oath you have taken, do you state to the court that that opinion,
informed and expressed, would bias or prejudice your judgment in rendering a
verdict as to the guilt or innocence of the prisoner, after having heard all the
^timony in the case?
A. It would.
The Court. You are discharged from further attendance.
J. RussBLL Barr, duly sworn and examined upon his voire dire, as follows:
By the Court :
Q. Have you formed or expressed an opinion in relation to the guilt or inno-
cence ef John H. Surratt, the prisoner at the bar ?
A I have formed — I am not certain that I ever expressed an opl' '
78 TRIAL OF JOHN H. SURRATT.
Q. Will you say on the oath you liave just taken, whether that opinion, W)
formed by you, would pn^judice or bias your judgment in arriving at a fair and
impartial conclusion with reference to the guilt or innocence of the prisooer at
the bar, after hearing all the evidence in the case ?
A. I do not think it would?
Q. You have never expressed any opinion at all ?
A. Not that I recollect ; I may have done so.
Q. And whatever opinion you have formed is not a decided one T
A. Not a decided one.
Q. You remain open to conviction, free from prejudice and bias ?
A. I think so.
Q. Have you conscientious scruples against rendering a verdict of guilty in a
case where the punishment shall be death, provided the evidence shall war-
rant you in such findiug 1
A. I have not.
The Court decided Mr. Barr to be competent as a juror, and no challenge
being made, he was accordingly sworn in as such.
Jbdmdiah GiTTiNOS, duly sworn and examined upon his voire dire, as fol-
lows :
By the Court :
Q. Have you formed or expressed an opinion in relation to the guilt or inno-
cence of the prisoner at the bar, John H. Surratt ?
A. I have.
Q. You have both formed and expressed an opinion ?
A. I have.
Q. Under the oath you have taken, do you say to the court that that opinion,
as formed and expressed, would bias or prejudice your judgment in rendering
a verdict as to the guilt or innocence of the prisoner, after having heard all the
testimony in the case ?
A. I think it would.
The Court. You are discharged from further attendance.
The court then adjourned until to-morrow at 10 o'clock a. m.
JuNB 14, 1867.
At 10 o'clock Associate Judge Wylie took position upon the bench, and
directed the crier to open court.
As soon as the court had been opened, he said :
Gbntlbmkn : I regret to have to announce to you this morning that Judge
Fisher is quite sick, and unable to attend court. I have a note in my hand to
that effect. He does not request me to hold court for him, and if he had, I have
other engagements which would render that impossible. I am at present hold-
ing the circuit court with a large amount of business before me.
Mr. Pibrrepont. What disposition can be made of all these jurymen who
have been subpoenaed here for to-day 1
The Court. I will hear any suggestions you have to make.
Mr. PiBRUEPOiNT. I do not know what we can do exactly; T presume we
had better talk lirst among ourselves. I have no doubt, judging from what has
passed, that we can agree upon anything amongst ourselves, so far as agreement
will do it.
The Court. But you cannot agree to try the case without a ju^ge.
Mr. PiBRRBPONT. I would like to know what, in the meantime, is to be
done with this large number of jurors. The order was for summoning 100 for
this morning, ani they, I suppose, are here, or will be. Only three have been
empannelled.
The Court. I have not had an opportunity of examining this recent act of
GongresB upon the subject, but my impression is, that unless the jury is obtained
to-dajy the case will have to be continued until the next term of the court.
TKIAL OP JOHN H. SURBATT. 79
Mr. Merrick. To-morrow, your honor, or until Monday moming, as Judge
Fisher intimated yesterday.
Mr. PiERRKPONT. Let me ask if it is not in the power of your honor to adjourn
this court until to-morrow moming, with direction to these same jurymen to
appear here then, for if the sickness of Judge Fisher should prove to be but tem-
porary, which 1 hope it will, we might then succeed in getting a jury this week.
The Court. I will add that 1 have also a note from Judge Fisher, stating
that in consequence of representations made to him, he is satisfied that Mr. Riggs,
who is a talesman, summoned in this case, ought to be excused from service on
the jury. He is therefore excused.
Mr. Bradley. If your honor will allow me, I would suggest that it would
perhaps expedite husiness, if those persons summoned as jurors, and desiring to
be excused, and who have a sufficient and valid excuse should make the same
now, and let your honor decide upon it at once. We can in that way get rid of
a portion of this number, and have their places supplied by to-morrow morning.
Mr. Pierrepont. Yes, sir; I think it would be very well, indeed, if your honor
can afford the time, to proceed to excuse such as shall present sufficient excuses,
who are physically disqualified, or those who ought to be excused for other
reasons.
The Court. Very well ; the clerk will proceed to call the list
Mr. Bradley. Mr. George £. Jillai-d tells me that he is summoned hefore the
grand jury for Monday moming, and, is, therefore, of course, discharged from
this jury.
The Court. Mr. Jillard is excused. The clerk will proceed to call the
talesmen, in their order, and gentlemen will he kind enough to signify their
presence as their names are called.
The clerk then proceeded to read as follows :
Thomas Lewis, no response.
Matthew 6. Emory, present.
William H. Harrover, present.
Daniel Breed, present.
Thomas Young, present.
James Kelley, present.
William Orme, present.
John McDermott, no response.
William Helmick, present.
Mr. Helmick. If the court please, I ask to he excused. I have now, and
always have had, conscientious scruples against capital punishment. I could
not sit as a juror and do myself justice.
The Court. I do not pass upon questions of that kind now. The clerk will
proceed.
George T. McGlue, present.
James McGran, present,
Greorge A. Bohrer, present.
Douglas Moore, present.
Christian C. Schnieder, present.
Upton 11. Rodenour, present.
Isaac W. Ross, present.
George J. Senfferle, present.
Joseph Crandall, present.
Thomas £. Lloyd, present.
Walter W. Burdett, present.
Frederick Bates, no response.
Moses T. Parker, present.
Nicholas Acker, present.
John T. Mitchell, present.
80 TRIAL OF JOHN H. SUfiRATT.
JeDkin Thomas, present.
Benjamin H. Stinemetz. «
Thb Court. Mr. Stinemetz I am told is confined to his bed by sickness. I
have a note from his physician to that effect. He is therefore excused.
Joseph L. Pearson, present.
Mr. Pbarson. I am not a taxpayer.
Mr. Bradlby. That settles it.
The Court. Why are you not a taxpayer? Have yon been overlooked
merely ?
Mr. PbarsGiV. I own no real estate in this city, and have never been assessed,
to my knowledge, for any other tax, except the school tax which I have paid
on voting.
The Court. I do not think you have a good excuse.
William Bailantyne, present.
William Flynn, present.
William H. Lane, present
Mr. Lanb approaching the court as if desirous of addressing him privatelv.
Mr. Mbrrick said: I will simply state to the court that on yesterday we had
agreed among ourselves that the court should hear these excuses, and act as it
saw proper; and that was suggested from the fact that in some cases the excuses
presented by the jurors might involve matters of delicacy, which it might not be
desirable to have made public, and that such should therefore be addressed solely
to the court, and not made known to us, unless the court saw proper to call our
attention to them.
The Court, (after a brief conversation with Mr. Lane ) I am satisfied Mr.
Lane has a just excuse, and he is therefore relieved from service.
Patrick Flemming, present.
Francis Lamb, present.
The Court. Mr. Germon Crandell, one of the jurors summoned in this case,
informs me that his wife is seriously sick, and therefore asks to be excused. He
is therefore excused.
William Orme, present.
The Court. Dr. Burrows certifies that Mr. Orme is laboring under such
physical disability as to render him unfit to serve as as a juror. He is excused.
The Court. Francis Lamb hands me a certificate to the effect that his wife
is very seriously ill. He is excused.
Thomas Young, whose name has been called, I have known for many years,
and have known him to be an invalid. I hold in my hand a certificate firom
Dr. Young stating that he is unfit. He is therefore excused.
William H. Tenney, excused.
The Court. Dr. Breed, whose name has been called, says that he has been
educated a quaker, and entertains such strong scruples that he could not serve
as a juror. That is not the class of questions, however, that I propose to act on.
Dr. Brbbd. I have still another reason, perhaps a stronger one; I have formed
a very decided opinion.
The Court. We have nothing to do with that at this time.
James Y. Davis, present.
George F. Gulick.
Mr. Gulick stated that his father-in-law had died last night, and of course he
did not feel like being detained at court under those circumstances.
The Court. We will not pass upon your case now, because the court is not
going to be in session to-day.
John Grinder, present
The Court. John Grinder has furnished the court with a certificate that his
left collar bone has been broken by being thrown from a carriage, and he is
therefore unable to sit as a juror. He is excused.
TRUL OF JOHN H. 8URRATT. 81
John A. Markriter,^pre8ent.
Colambus Alexander, present.
William H. Baldwin, present.
John W. Simms, present.
John T. Given, present.
Paulus Thyson, present.
William B. Williams, present.
The Court. Jenkin Thomas informs the court that he is subject to attacks
of inflammatory rheumatism, of which he has had two of great severity within
the last two months, and that he is liable to a return of them on any very decided
change in the temperature of the weather.
The District Attobivby. Almost every man is liable to a disease of some
kind, and I respectfully submit to your honor that that is hardly a sufficient
excuse.
Mr. Thomas. I am suifering now.
The Court. I do not think, Mr. Thomas, that your case is such a one as
would justify me in excusing you.
Norman B. Smith, no response.
The Court. Mr. Paulus Thyson has presented me with an excuse, which I
think is a sufficiently good one to justify the court in excusing him. It is rather
of a private nature. He is excused.
A. B. Stoughton, present
Peter Hepburn, present.
James S. Topham, present.
The Court. I am informed that Mr. Topham has a little child at the point of
death. He is therefore excused.
W^illiam J. Redstrake, present.
J. J. May.
The Marshal. He is in New York.
William McLean, present.
Thomas Maguire, present.
James C. Kennedy, present.
Mr. Kennedy. I claim exemption on the ground that I am not a resident of
the District. I pay taxes on property here, but I vote in the city of New York,
and pay my personal taxes there. I claim my residence in that city.
The Court. Yon are excused.
John Wilson.
Mr. Wilson. I would state, your honor, that when I am away fi'om my place
of business, it is left without any one at all to attend to it. My family are all
well, sir, and, notwithstanding, I am in a very delicate state of health myself,
(laughter, being a gentleman weighing about 210 pounds,) I conld not get a
certificate from my physician. I have no excuse to render, your honor, other
iban to say that I would like very much to get off on account of my business
engagements.
The Court. Judging from yonr appearance the court will give you exemp-
tion when you bring your doctor's certificate. (Renewed laughter.)
William H. Barbour, present.
Creorge L. Sheriff, present.
Bamuel Bacon.
The Court. Mr. Bacon is a little unwell, and he is not certain whether he
^ill be able to be here to-day or not. He is willing to serve if he feels well
enough.
Perry W. Browning, present.
Mr. Browning. I will simply state that I am reside it of the State of Mary-
land, and vote there.
82 TRIAL OF JOHN H. 6URRATT.
The Court. Mr. Browniug is excused. I know the fact which he atates.
John Alexander.
The Marshal. He \q in New York.
George E. Jillard, excused.
William Bryau, no response.
Amos Hunt, present.
Lot Flannery, present.
laaac TV. Koss, present.
The calling of the list heing completed, the conrt said Mr. Kelly holds the
office of watchman in the Navy Department, and is therefore exempt by law.
Mr. Stoughton says he has a large business in the patent line, which sitting as
a juror here would materially interfere ^ith. The court does not feel at liberty,
however, to excuse him on that ground.
Mr. Stoughton. I will state that I cannot possibly be here.
Mr. PiERREPONT. The court will not sit to-day, and perhaps not to-morrow,
and you may not be required at all. You had better let your case lie over.
The Court. Mr. Douglass Moore is excused on account of sickness.
Have you any propositions, gentlemen, to make in regard to the disposition
of this case to-day ]
Mr. Braolby. I wish to suggest, sir, to my brethren on the other side, that
it would, perhaps, be well to have the court direct the marshal to summon as
many more to-morrow as have been excused to-day.
The Marshal. I will explain, if the court please, that I understood the order
of the court yesterday to be, that the marshal summon 100 additional jurors.
In view, however, of the very limited time which we had in which to execute
the order, the full complement was not made out, and I propose now, if such
meet the approval of the court and the counsel, to fill up such vacancies as have
occurred by gentlemen being excused, and summon the remaining number of the
100, so that the list shall be complete to-morrow morning.
The Court. The marshal will complete the list, so that we may have 100
here to-morrow morning.
Thereupon the court adjourned till to-morrow morning at 10 o'clock.
June 15, 1867.
The court met at 10 o'clock a. m. Justice Wylie on the bench.
The Court. I will announce to the gentlemen of the bar engaged in this case
that it is not my purpose to go into the trial of it, but merely to preside here to-
day for the selection of a jury. I am engaged in holding the circuit court, and I
suppose that one of my brethren will be here in time to go on with the trial of
this cause on Monday. I have adjourned the circuit court for to-day in order
that the jury may be completed in this case, and all parties thereby saved from
the expense, labor, and vexation of going over again all that has been done from
Monday until this time.
If the court shall adjourn to-day without completing the work, on Monday
there being a new term, the case would have to be continued. For that purpose
then alone is it that I have adjourned my own court to come here and assist io
the conclusion of this work that has been entered upon of the selection of a jury.
There is no other judge who can attend to it, and Judge Fisher is sick, and my
other two brethren are absent.
The Court excused Mr. Larmon, it being shown that he was an officer of the
government, employed in tlie Treasury Department, as master machinist iu the
Currency Bureau.
The Clerk was directed to call the li.^st of talesmen, which he preceded to do
as follows :
Thomas Lewis, no response.
John McDermott.
TRIAL OP JOHN H. 8URRATT, 83
The Marshal. He has not been served. He is not in the city.
Norman B. Smith, present.
J. J. May, no response.
John Alexander, present.
The Court. I think it would be better for those who intend to apply for
exemption to make their application as their names are called.
Mr. Bradley. That has been done heretofore.
Mr. Smith. May it please your honor, I don't think lam physically able for
the endurance of a juryman. Besides that, I do not believe I am competent,
for I have expressed an opinion relative to this case.
By the Court :
Q. When did you express that opinion ?
A. I believe I have done it repeatedly.
Q. When ?
A. After the trial of the conspirators — after reading the testimony in that
case.
Q . It is not enough to have expressed an opinion. Have you formed an opinion,
is what I desire to know, for sometimes ihen express opinions that they do not
believe in.
A. I believe I had formed an opinion before I expressed it.
Q. You say you formed your opinion from reading the testimony given on
the trial of the conspirators ?
A. Yes, sir.
The Court. I do not think that is a sufficient excuse. I do not see how a
man can form an opinion in regard to the guilt of a man in one case, by reading
the evidence in another case.
Witness. If that is not sufficient ground to excuse me I claim it on the other;
1 am certainly not physically able to endure the fatigues of sitting on a jury.
The Court. I do not believe you are. You seem to be very tremulous.
You are excused.
The District Attorney. If your honor please, I was not in when your
honor first appeared upon the bench, but peimit me to say, sir, several diffi-
culties occur to us upon consultation, in the way of proceeding with the cause
at present. I do not know whether your honor's attention has been called to
the act of Congress, which was read to Judge Fisher, providing that unless a
jary is empanelled during one term of the court, we cannot continue the trial
of the case during the succeeding term.
The Court. 1 understand that.
Mr. Bradley. Is that any reason why you should not get a panel.
The Court. That is why I am sitting here to-day in order that we may get
a jury before the next term begins.
The District Attorney. Precisely, but it occurred to us that it would be
impossible for us to empanel a jury to-day. But even if wo should succeed in
doing so, there are other difficulties which suggeet themaelvcs to our minds, and
which we deem it our duty to bring to the attention of the court. The term of
tbe criminal court is assigned to one of the judges of the supreme court of the
l^iatrict of Columbia, and during the term, I believe a rule of court requires that
where a judge takes the place of the one to whom the term has been assigned,
it should be upon his written request. 1 think that is the rule of the court in
such a case.
The Court. How do you know but what I have that.
The District Attorney. I am not aware of how the fact is in this par-
ticular case. I merely suggest these difficulties because we wish to proceed in
tQch a way that there can be no objection made hereafter to the mode of pro-
ceding. We conceive it to be our duty to bring to the mind of the Court such
" ies as may occur to us, and which your honor may have overlooked.
84 TRIAL OF JOHN H. 8UERATT,
There 18 one other point, if your honor please, that I desire to call to the atten-
tion of the court. It is this, whether it would he a legal proceeding for one
judge to commence the trial of the case, to decide an important question, such as
has been decided during the progress of this trial, and to empanel a part of the
jury ; for a second judge to complete empanelling of the jury, and then for a
third judge to try the case, for the reporter has read to me the announcement of
your honor that it is not jour purpose to tiy this case, but simply to go on and
empannel the jury.
The Ci>iRT. Yes, that is all.
The District Attorney. If your honor were to empannel this jury, and
then proceed to try the case, that might obviate the difficulty to a certain extent
The case would then be presented of one judge empanelling a part of the jury,
and the other jodge taking his place, in conformity with the rule of the court,
and completing tne empanelling of the said jniy, and presiding during the
entire trial ; but if this case is presented with Judge Fisher dedding one import-
ant question which has been submitted to him, empanelling three of the jurors,
and your honor empanelling the nine other jurors, and then of the case
going to the next term, and the chief Justice trying It, I doubt whether that
would be a legal proceeding. At all events it is a question of such grave im-
portance
Mr. Pikkrepont, Three judges will then have been oigaged in the trial of
one case
The District Attorney. I say, sir. the question is one of such grave im-
portance that we have felt it our duty to bring it to the attention of the court,
and to submit some observations upon it.
The Coirt. It is not worth while to waste any time upon points of that sort.
Jam not disposed to listen to argument upon such. The law knows neither
Judge Olin, Judge Fisher, nor «ludge Wylie, but looks to the *'jiistiee of the
criminal courts* * and it makes no difference if all four <^ ns are oonoemed on the
trial at diflR^rent f tJige? of the case,
Mr. PiKRRKM^XT. We feel it to be our duty to present to your bonor the
view we ent«^nain, that under your law, three judges cannot sit in die trial of
one cause, and have it legal.
The OovRT, There are ih>i three indges sitting — only one-
Mr PiRRREroNT. As I Understand it« the empanelling of a jmy is as much
the trial of a cause as the hearing of the testimony.
Mr. l^RAPLEY. Are we t4> undoi^tand the learned comutel as boldiog, that if
the judpi- be t^kt n sick ai'^^-r ho shall have entered upon the trial of a cause, aiid
be unablo ti^ atton^l. that aiiMher jur.pe cannot take his place.
Mr, PiKRRErovT, 1 c*^nA:nly suppose be cannot ii; a murder triaL
Mr. Brai^i.fv. He <vrtairjly can.
Mr. PiKRRFiVAT. N..t wbm the cJi5e mn? into aaoxber uhml.
The vV V R T. K iN^uce y v^::r p^-^int t ■> wtt: :r»£r. The cc»trt oTermle* the objection,
a»d, prAups, it would be will f.-^r yova ;,^ Lire yi*nr pcait ful]y preseaied on the
reowa.
Th*^^ District Atti^rxfv. I am t^.m aware that I w^old accomplish anything,
by Ttshicini: ^t T*^ ^T:t:Ti^, K-caiif^ I w^r.l.i h^ire i>o appeal At kta^t that is «
ttiWT>r^ qiiesti^Mk wii«tK-r in c-rmrna] ra^**s Tbe ^r-^xymiafflii has aay appeal.
The OovRT, I Ivai^ orfrrdciS tlK or;vv*:>vTi. Tb^-re is no ix5*e, ibcix^bre, dis-
'CiK5siti(r the matsier.
Mr. I'^RRfifrv^VT. Jn a lv>w tone T*> ibe disrrjrt aa««eT,> We cannot go
An.
IV Ci .1 RT. Pr.wea TO call :ljf ;urr. Mr, Clfsk,
T4ie ckirk :>4ris r.cnacejcei cjii.l;:.^ * rix :lji lis; lis ihc f.^owing order:
TRIAL OF JOHN H. 6UHBATT. 85
Thomas Lewie, no response.
Matthew G. Emory, present.
The Court. I have a certificate from Mr. Emory's family physician, stating
that his wife is quite sick, and requires to be removed to different air, and that
Mr. Emory himself is rather indisposed, (laughter ) The act of Congress makes
that a good excuse. He is therefore excused.
William Harrovbr was next called, and after being duly sworn — examined
on his voire dire, as follows :
By the Court :
Q. Have you any reason why you should not serve upon this jury ?
A. No, sir; but I would rather not. I do not like to serve on such cases.
The Court. Gentlemen have you any questions to put to him.
Mr. Bradley. I thought your honor intended putting the question to him as
to whether he had form^ and expressed an opinion.
By the Court. Have you formed an opinion in this case ?
A. I cannot say that I have. It is impossible to tell. We have our opinions
about these things.
Q. Have you any conscientious convictions as to the lawfulness of capital
punishment ?
A. I do not know.
Mr. Bradley. He has served upon capital cases. It is hardly worth while
to ask him that question.
The Court. Mr. Harrover is a competent juror.
Mr. Harrover. I have a certificate here.
The Court. Let me see it. I thought you were through. (After reading
the pajper.) Here is a very strong medical certificate to the effect that Mr.
Harrover is whollyphysically incapacitated from sitting on a jury.
Mr. Mbrrigk. Who is the physician 7
The Court. Dr. Toner.
Mr. Harrover. My neighbors can certify to the same.
Mr. Bradley. Dr. Toner is a man of character.
Mr. Harrover. I tried to get it in yesterday, but did not succeed.
The Court. If the facts stated in this certificate be true, he is physically
incompetent.
The juror was excused.
Daniel Breed was called, and examined upon his voire dire.
By the Court :
Q. Are you physically able to sit on a jury ]
A. I think I am, thougli I am not very well now, and was recently quite
indisposed.
Q. Have you formed an opinion in this case ?
A. I have.
Q. When did you form it ?
A. From the^first history of the murder of Lincoln. I have watched every-
thing I have seen in the papers, and little by little have come to the conclusion
and expressed an opinion long ago, in regard to the prisoner.
Q. In regard to this prisoner ]
Q. Yes, sir.
Tlie Court. You are incompetent, and are excused.
John R. Elvaxs called, and after being sworn was examined upon his voire
^ircj as follows :
By the Court :
Q. Have you formed an opinion in this case ?
A. I have.
86 TBIAL OF JOHN H. 8CBRATT.
Q. "When did you form that opinion ?
A. Probably fi om the time of the trial of the conspiraton by the militiiry com-
mission at the arsenal. It has been foimded on the newspaper reports of that
trial of course.
Q. Do you think that opinion is such as to sway or bias your mind so as to
effect your judgment upon the evidence and the law a^ given to you by the
court and witnesses ?
A. So far as I can analyze my own mind, I do not think it would have any
effect on my judgment in the rendition of a verdict. I believe I could render
a verdict in accordance with the evidence, notwithstanding the fiict that I may
have formed an opinion firom reading the newspapers.
Q. Do you entertain any conscientious convictions as to the lawfulness of
capital punishment I
A. None, sir. «
The Court. I think he is a competent juryman. Have you any questions
to ask, gentlemen ?
The District Attorney. If you honor please, having upon consaltation
entertained some doubt as to the legality of the present mode of proceeding, we
have thought it best to reduce our proposition to writing, in order that hereafter
we may take some advantage of it, if necessary, and then have the matter more
materially considered, either by the judge who does preside, or by the court in
heme,
I will now, with the permission of your honor, proceed to read the paper.
It was then read, as follows :
'June 15, 1867.
'* The district attorney, on the part of the United States, objects to any pro-
ceeding to empannel a jury, on the ground that this term ends on Monday next,
June 17, 1867; that the judge, to wit. Judge Fisher, assigned to hold the
present term, is sick, and not present ; that he was present on Thursday last ; that
another judge, to wit, Judge Gartter, is assigned to the next term of this crimi-
nal court, and that as the commencement of the empannelling of the jury was
by Judge Fisher, it is submitted by the district attorney to be illegal to proceed
before Judge Wylie, to complete the empannelling of the jury in this case.
"EDWARD M. CARRINGTON,
" U. S. Attorney far District of Columbia"
The Court. The objection is overruled. You except of course.
The District Attorney. Yes, sir. We desire to have the paper filed.
Mr. Bradley. (To the district attorney.) Do you challenge Mr. Elvans )
The District Attorney. No, sir.
Mr. Bradley. We do.
Thomas Blag den was called, and after being duly sworn was examined
upon his eoire dire.
By the Court :
Q. Have you formed an opinion in this case ?
A. I have. I have formed an opinion, and expressed it the other day ?
Q. When did you form that opinion.
A. During the progress of the trial of the assapsins. I cannot specify exactly
the time. 1 read attentively all the evidence that was given.
Q. You formed it from newspaper reports of the evidence of that trial 1
A. Yes, sir.
Q. Do you suppose that your bias is so strong in consequence of that opin-
ion that you could not do justice to the pri^jouer, or to the United States?
A. I do.
The Court. You are excused.
TRIAL OF JOHN H. 8URRATT, 87
Riley A. Shixn was called, and after being dulj sworn was examined on
his voire dire, as follows :
By the Court :
Q. Have you formed an opinion?
Mr. Shi NX. Your honor, I wish to state that I suffer a groat deal with a dis-
ease, which I have had for years, and which would be rendered much worse by
Bitting as long as I would have to, were I required to serve on this jury. I
mentioned the fact to Judge Fisher the other day, and would have come prepared
with a certificate from my physician, had I supposed there would be a sest*ion
of the court to-day. If the case were expectea to occupy only a few days, I
would have no objection at all; but it would be impossible for me to sit on a
protracted case like this promises to be. Some time ago, while serving on the
grand jury, I was compelled to get a leave of absence from Judge Fisher for
some fifteen days, in consequence of this complaint.
Q. Is it a chronic complaint?
A. Yes, sir.
Q. Did it disable you at that time ?
A. Yes, sir. Sitting any length of time has the effect to aggravate the disease,
and render me very uncomfortable. Walking does not effect me at all ; but it
frequently happens that I am not able to ride for a week or two. Some times
I am unable to lie in my bed, and have to sleep in a reclining chair.
The Court. You are excused.
Richard M. Hall was called, but not responding, his name was passed.
JoHX Van Rbswick was called, and after being duly sworn was examined
on his voire dire, as follows :
By the Court :
Q. Have you formed an opinion in this case.
A. I have not, nor expressed any that I am aware of.
Q. Have you any conscientious convictions as to the lawfulness of capital
punishment ?
A. I have not.
The Court. I do not observe any physical disability, and I think him, there-
fore a competent juror.
The District Attorney. We asked Mr. Van Keswick a question the other
dav.
The Court. Well.
Mr. PiERRBPONT. The case stands in this peculiar position, your honor.
This same juror was upon the stand the other day, and a cert^iin question
wa* asked him, to which objection being made, the court concluded to hold the
matter over and let the juror retire for the time being. I may state, in this
connection, that the question was argued at great length by counsel on both
sides.
The Court. What was the question ?
Mr. Pikrkepont. Has your honor read the indictment, allow me to ask, in
order that 1 may make myself intelligible.
The Court. I heard it read ; 1 was present when the prisoner was arraigned.
Mr. PiBRRRPONT. The indictment, as your honor will perceive, in the third
and fourth counts charges this prisoner with being engaged in a conspiracy
^ith certain other persons named ; it follows, therefore, that if the other persons
^ilh whom he is charged with being engaged in a conspiracy, were themselves
innocent of any conspiracy, why of course this party is innocent, because he
cannot conspire alone. The question which had been put to the witness, and
Hich was held under advisement by Judge Fisher, was as to whether we could
properly ask the witness whether he had formed and expressed an opinion re-
garding the guilt or innocence of the other conspirators named in the indictment.
88 TRIAL OF JOHN H. SURRATT.
Mr Bradley. And the principal objection to which was, that they did not
ask him whether he had formed or expressed an opinion as to the complicity of
the prisoner with the parties charged with that conspiracy, or stated any
opinion as to his connection with them in any shape, but as to people entirely
outside of him.
Mr. PiERREPONT. It came up on a single question; the whole substance of
the thing was debated, and of course the determination of that question would
determine the other questions which were to be asked of this witness.
The Court. I remember observing something about this question being
raised in the published reports.
Mr. PiERREPONT. If the court should say that any opinion formed in relation
to the guilt or innocence of the co-conspirators disqualified the juror, why then
of course he could not sit any more than if he had expressed it in relation to
the accused himself. Under these two counts of the indictment, if the other
parties were not conspirators, why then this man was not a conspirator, for no
man can conspire alone ; hence I say it being a material averment in the indict-
ment that he is guilty as a co-conspirator, it becomas in our judgment a matter
of very great importance to know whether this juror has made up his mind in
relation to the innocence of the other conspirators charged with this crime ; if
so, he has so made up his mind on the subject as will necessarily acquit the
prisoner.
Mr. Bradley. I thought the gentlemen had determined to abandon the case.
Mr PiERREPONT. We are determined to file our objection, and have done so.
Mr. Bradley. We do not propose, sir, to discuss any of these questions relat-
ing to the qualifications of jurors, but simply to submit them for your houoi^s
decision, without argument, so far as we are concerned.
The Court. I called over to see Judge Fisher last night, and this question
was mentioned by him. We boih concurred in the opinion that the objection
raised to the competency of the juror was not a valid objection, and he would
have so ruled had he been able to have come into court this morning.
Mr. PiERREPONT. If your honor please, I do not know exactly what the cus-
tom here is, in relation to the trying of jurors before the court, in place of trier:*,
as the statute provides. The learned district attorney and the learned counsel
on the other side, seem to entertain different views as to the cus4;om. I will only
say, sir, that by the statute of 1862, as well as at common law, these were proper
questions to be asked of the juror, in order to discover whether he was competent
on various grounds
Mr. Bradley. Will my brother permit me to ask him what question there is
before the court ?
Mr. PiERREPONT. I want to see whether I will be permitted to ask any ques-
tion:*.
The Court. I have overruled your objection, you will understand.
Mr. PiERREPONT. Yes, sir ; I understand that. What I am now desirous of
ascertaining is, whether other questions going to the competency of the juror,
are in your honor's judgment, proper to be asked of the jurors. My leanied
friend the other day suggested that it was not customary to examine, or to cross-
examine a juror. I do not see how we are otherwise to get at his competency.
The Court. This juror is now being examined by the court on his voire dire.
If counsel ask questions it is only by permission of the court. The court will
grant you that permission, if you have any other questions, reserving to itself,
of course, the right to decide upon the competency of the q nestions asked.
Mr. PiERREPONT. Of course. I see the statute provides certain qualifications
in order to make a juror, and with the permission of your honor, I will now
proceed to ask him with regard to such.
The Court. Very well, sir.
Q. You are a citizen, I suppose ?
A. Yes, BUT.
TRUL OF JOHN H. SURRATT. 89
Q. Bom in this coantiy ?
A. Yes, sir ; a native of Washington.
Q. I presume you pay taxes ?
A. Yes, sir.
Q. ELave you heen living in Washington the whole time since the assassina-
tion?
A- O, yes, sir.
Q. llave you read the evidence connected with the trial of the conspirators, or
much of it.
A. I read some of it, perhaps all, I am not sure.
Q. And you formed no opinion as to the guilt of the prisoner 1
A. No, sir ; none at all.
Q. And you did not express any 7
A. No, sir.
Q. And have not any now formed in your mind, one way or the other ?
A. I have not.
Mr. PiBRREPONT. I will now put to you a question which I do not wish you
to answer unless the court shall decide it competent. I presume it will be over-
ruled, but I put it simply for the purpose of preserving the point.
Q. Have you formed and expressed an opinion touching the guilt or innocence
of those who are charged in this indictment as conspirators with the accused.
Mr. Bradlbv. Do not answer.
The Court. I have just overruled that question.
Mr. PiBRRBPONT. I 80 Understood your nonor, but I was desirous of having
the point spread out on the record.
Mr. Bradley. It was on the record before.
Mr. Merrick. I understand that every thing that is said goes upon the re-
cord. The reporters, I believe, take down every thing that is said and done.
The Court. What the reporters take down does not constitute the official
record of the court.
Mr. Mbrrick. Not the record usually made by the clerk I am aware, sir.
By Mr. Pibrrbpont :
Q. Do you know what thfi charge is for which the party is arrested here ?
A. I think I have understood it.
Q. What have you understood it to be ?
A. I understand that he is indicted for murder ; being engaged in a conspiracy
with other parties to commit murder.
Q. On neither you have formed an opinion ?
A. On neither.
Challenged by the district attorney.
Josbph T. Brown was called, and being duly sworn was examined on his
voire dire, as follows :
By the Court :
Q. Have you formed an opinion in this case ?
A. I have.
Q. When did you form this opinion 1
A. About the time of the trial of the conspirators. I also formed that opinion
about the time of the arrival of Mr. Surratt, I believe, having then re-read the
testimony in the conspiracy trial.
Q. Is the bias which you have received from reading that testimony on your
mind so strong as would interfere with your impartial discharee of your duty as
& juryman upon the evidence given to you in the cause, and upon the Uw as
given by the court ?
A. I think it would ; at least I would be afraid to trust it.
Excused.
•90 TRIAL OP JOHN H. SUBRATT.
Thomas Brrry was called, and being duly sworn was examined on his voire
dire, as follows :
Bj the Court :
Q. Have you formed an opinion as to the guilt or innocence of the prisoner ?
A. I have.
Q. How, and in what .way did you form this opinion ?
A From reading the statement of his arrest, and a portion of the proceedings
on the trial of the other conspirators.
Q. Is the bias on your mind so strong as to prevent you doing impartial justice
between the United States and the prisoner ?
A. No, sir.
Q. Do you think you could decide it fairly ?
A. Yes, sir ; according to the law and the evidence.
Q. Have yon any conscientious convictions as to the lawfulness of capital
punishment.
A. No, sir.
The Court. Gentlemen, he is a competent juror.
Mr. Bbrry. Permit me to say, your honor, that I am not in very good health,
and therefore do not know as I would be able to serve.
The Court. Have you a doctor's certificate?
Mr. Bbrrv. No, sir.
The Court. The presumption then is that you are able to serve.
Mr. Berry being accepted by counsel on either side was sworn in by the
clerk.
John H. Crane was called, and being duly sworn was examined on his
voire dire, as follows :
By the Court:
Q. Have your formed an opinion as to the guilt or innocence of the prisoner
at the bar ?
A. I have.
Q. In what way did you form this opinion ?
A I formed the opinion from reading the report of the assassination trial two
years ago, and from circumstances connected with the case.
Q. Is the bias on your mind so strong as to disable you from rendering an im-
partial verdict between the United States and the prisoner ?
A. No, sir.
Q Do you believe you could decide according to the law and the evidence in
the case?
A. I think I could.
Q. Have you any conscientious convictions as to the lawfulness of capital
punishment ?
A. I am opposed to capital punishment.
Q. But so long as capital punishment is lawful by the laws of the land, would
that disapprobation on your part influence you in rendering a verdict ?
A. It would not.
The Court. He is competent.
Challenged by the prisoner.
William Helmick was called, and being duly sworn was examined on hia
voire dire, as follows :
By the Court:
Q. Have you formed an opinion in regard to the guilt or innocence of the
prisoner at the bar ?
A. I have formed, and expressed frequently, an opinion in reference to this
case.
^ Q. In what way have you formed that opinion ?
TRIAL OP JOHN H. SURRATT, 91
A. From reading the proceedings on the trial of the conspirators some two
years ago.
Q. Is that opinion so decided as to bias your mind in determining between
the United States and the prisoner at the bar ?
A No, sir; I do not think that a person should form such an opinion as would
force him to a decision contrary to the law and the testimony that should be
presented. If I were otherwise competent, I could not consider myself incom-
petent on that ground.
Q. Do you entertain any conscientious convictions as to the lawfulness of
capital punishment?
A. I do, and always have. Many years ago I favored the passage of a law
in my State to abolish capital punishment in the State entirely. My opinion is
very decided on it
Q. But as capital punishment is lawful by the laws of the land, do you think
you would have anything to do with that as a juror?
A. I should very much regret to have to take an oath to decide a case of the
kind. With my present views on that subject I do not think I would be com-
petent to decide. My prejudices against capital punishment have always been
such that I do not feel as if I could sit as a juror in a case of murder.
The Court. You are excused.
George T. McGlub was called, and being duly sworn was examined on his
voire dire, as follows :
By the Court:
Q Have you formed an opinion in regard to the guilt or innocence of the
prisoner at the bar ?
A. I have.
Q. How did you form that opinion ?
A. By reading, ard from rumor.
Q. Is that opinion so decided as to affect your impartiality as a juror, in case
70U should be sworn, in weighing the evidence ?
A. If it had not been for circumstances I think it would have been, but my
opinion, from circumstances, has been changed.
Q. So you have a double opinion on the subject ?
A. I say my opinion has been changed from circumstances transpiring in re-
gard to the rebellion.
Q. What I want to get at is this: whether you could do impartial justice
between the government and the prisoner at the bar, according to the law and
the evidence?
A. I would rather be afraid to trust myself.
Q. Do you believe though, you could decide fairly and impartially upon the law
and the evidence in the cause, notwithstanding those former opinions which you
may have entertained ?
A. I might do so, and then again my feelings are of such a character that I
mi^bt not be able to.
Q. Do you entertain any conscientious convictions as to the lawfulness of
capital punishment ?
A. No, sir.
The Court He is a competent juror.
Challenged by the prisoner.
Jambs McGran was called, and being duly swoni was examined on his voire
^^rt, as follows :
By the Court:
Q. Have you formed an opinion in regard to the guilt or innocence of the
priaoner at the bar ?
A. I have.
92 TRIAL OF JOHN H. 6UBBATT.
Q. By what means did you form that opinion 1
A. By reading, and hearing conversations in regard to the matter.
Q. Is that opinion bo strong in your mind that it would affect your verdict aa
a juryman ?
A. I think it would.
Q. Do you think it would hias you as to your verdict upon the law and
evidence that you might receive in this case ?
A. I think that it would have a tendency to do so.
Q. Do you entei-tain any conscientious convictions as to the lawfulness of
capital punishment ?
A. No, sir.
Mr. McGran was declared to he a competent juror.
Challenged by the district attorney.
George A. Bohrbr was called, and being duly sworn was examined on his
voire dire, as follows :
By the Court :
Q. Have you formed an opinion in regard to the guilt or innocence of the
prisoner at the bar ?
A. I should like first to hear the names of the conspirators read before 1
answer the question. I understand that he is indicted jointly with others.
The Court. No, sir, he is not indicted with others.
Mr. BoHRER. But indicted for acting jointly with others, as I understand.
The Court. No, sir; he is indicted for murder; the result of a conspiracj
with others.
Mr. Bohrbr. I have formed and expressed an opinion in regard to the con-
spiracy trials that have heretofore been had.
Q. In what way did you form that opinion ?
A. From reading the newspaper reports of the evidence taken on the trial of
the conspirators.
Q. Is this bias on your mind so strong as to disturb the impartiality of
your mind in weighing the evidence on the trial in this case ?
A. No, sir.
Q. Do you entertain any conscientious convictions as to the lawfulness of
capital punishment ?
A, Probably I can convey a better idea to your honor before answering that,
by saying that I expressed this opinion in regard to this matter from the evi-
dence.
Q. You will please answer the question I have just asked.
A. I have not.
I desire to say with regard to the first questions put to me, that I have said
that I could not have convicted Mrs. Surratt on the evidence adduced before the
commission. I think it is due to the court, to the public, and to myself to make
this statement.
The Court, That has nothing to do with this case. We are not inquiring
here as to the guilt or innocence of Mrs. Surratt.
The Court. Mr. Bohrer is a competent juror in the opinion of the court.
Mr. Bohrer was accepted and sworn.
Christian C. Schneider was called, and being duly sworn was examined
on his voire dire, as follows :
By the Court:
Q. Have you formed an opinion in regard to the guilt or innocence of the
prisoner at the bar ]
A. Yes, sir.
Q. In what way did you form that opinion ?
TRIAL OF JOHN H. SURRATT. 93
A. From the papers and from the evidence given on the trial of the conspira-
tors.
Q. Is that opinion on you mind so strong as to render your incapable of
deciding according to the law and the evidence in this case ?
A. No, sir.
Q. Do yon entertain any conscientious convictions as to the lawfulness of
capital punishment!
A. No, sir.
The Court. Mr. Schneider is a competent juror.
He was then accepted and sworn.
Upton H. Ridenour was called, and being duly sworn was examined as fol-
lows :
By the Court :
Q. Have you formed an opinion in regard to the guilt or innocence of the
priisoner at the bar ?
A. I have.
Q. In what way did you form that opinion ?
A. From reading the evidence given on the trial of the conspirators.
Q. Do you feel that you have such a bias on your mind as to render yon nn-
capable of rendering an impartial verdict between the United States and the
prisoner at the bar ?
A. I would have considerable to overcome before I could do it. I have strong
prejudices.
The Court. That is not an answer to my question.
My question is whether you feel that you have such a bias on your mind as
to render you incapable to decide upon the law and evidence in the case ?
A. I think I do.
The Court. You are excused.
Isaac W. Ross was called, and being duly sworn was examined on his voir^
dire^ as follows :
By the Court :
Q. Have you formed an opinion in regard to the guilt or innocence of the
prisoner at the bar %
A. No, sir.
Q. Do you entertain any conscientious convictions as to the lawfulness of
capital punishment?
A. No, sir.
The Court. He is competent.
Mr. Bradley. Mr. Ross is very infirm in health, being aflfected with paralysis,
and I think it would be impossible for him to sit upon a jury when the trial will
be as long and tedious as this promises to be.
The Court. How is that Mr. Ross ?
Mr. Ross. I guess there would be no difficulty about that. I do not appre-
bend any.
Challenged by the prisoner.
CtKorue a. Subfpbrlb was called, and being duly sworn was examined on
bi:} voire dire, as follows :
By the Court :
Q. Have you formed an opinion in regard to the guilt or innocence of the
prisoner at the bar ?
A. Yes, sir.
Q. How?
A. From newspaper reports of the proceedings of the trial of the conspirators.
94 TRIAL OF JOHN H. 8URRATT.
Q. Is your mind bo biased as to render you incapable of deciding impartially
on the law and the evidence ?
A. I think not.
Q. Do you entertain any conscientious convictions in regard to the lawfulness
of capital punishment. .
A. None at all.
By the District Attorney :
Q. Were you on the last grand jury ?
A. No, sir; I think I was on the grand jury in 1864.
Q. You were not on the grand jury that found this bill of indictment?
A. No, sir.
Challenged by the district attorney.
Thomas E. Lloyd was called, and being duly sworn was examined on hia
tfoire dire, as follows :
By the Court :
Q. Have you formed an opinion in regard to the guilt or innocence of the
prisoner at the bar ?
A. I have.
Q. In what way did you form that opinion ?
A. I formed the opinion by reading the proceedings on the trial of the con-
spirators before the military commission and subsequently.
Q. Is that opinion so strong as to affect yoar impartiality on the trial be-
tween the United States and the prisoner at the bar ?
A. As far as I can analyze my own mind, I believe I would not be a com-
petent juror.
Q. You think you would be controlled in some measure by that bias ?
A. I think so.
The Court. You are excused.
Walter W. Burdettb was called, and being duly sworn was examined on hi^
voire dire, as follows :
By the Court :
Q. Have you formed an opinion in regard to the guilt or innocence of the
prisoner at the bar 7
A. I have.
Q. In what way did you form that opinion 1
A. From what I have heard and read.
Q. Is your mind so settled in that conviction as to prevent you from render-
ing an impartial verdict according to the law and the evidence, between the
prisoner at the bar and the United States 1
A. I believe I could come to a just conclusion in the case.
Q. Do you entertain any conscientious convictions in regard to the lawful-
ness of capital punishment ?
A. For many years I have been opposed to capital punishment, or the pen-
alty of death for any crime.
Q. Would that prevent your rendering a verdict according to the law and the
evidence ?
A. It would, where I believed the sentence would be capital punishment.
The Court. You are excused.
Frederick Bates was called, and being duly sworn was examined on bia
voire dire, as follows :
' By the Court :
Q. Have you formed an opinion as to the guilt or innocence of the prisoner
at the bar 1
TRIAL OF JOHN H. 8UBRATT. 95
k. Yes, sir.
Q. In what way did you form it ?
^ From attendance on the trial of the conspirators, and from reading the re-
rts in the newspapers.
(J. Is that opinion so strong as to bias your mind and affect your impartiality
a juror, between the United States and the prisoner at the bar ?
A. I think it would be.
The Court. You are excused.
&I0SES T. Parker was called, and being duly sworn was examined on his
Ire dirtt as follows :
By the Court :
Q. Have you formed an opinion in regard to the guilt or innocence of the
soner at the bar.
A. At the early incipiency I did.
CJ. How did you then make up your opinion t
A. Merely from the floating ideas and opinions at that time.
5- Do you feel as if that opinion is so strong as to render you incapable of
idering an impartial verdict between the United States and the prisoner at
: bar, upon the law and the evidence ?
A. I have never thought that an opinion entertained by me would prevent
rendering a verdict according to the law and the evidence.
2. Do you entertain any conscientious convictions against the lawfulness of
dtal punishment ?
1. 1^0, sir.
The Court. He is a competent juror.
Challenged by the prisoner.
Nicholas Acker was called, and being duly sworn was examined on his voire
e, as follows :
By the Court :
J. Have you formed an opinion in regard to the guilt or innocence of the
soner at the bar ?
L I have.
J. In what way did you form that opinion ?
K, As far back as the conspinicy trials. I read the book on it.
ij. Is that opinion so strong as to affect your impartiality as a juror in the
d between the United States and the prisoner at the bar ?
k, I do not know that it would on the evidence.
5. Have you any conscientious convictions against the lawfulness of capital
nishment 't
k. No, sir.
The Court. He is a competent juror.
By Mr. Pierrepont :
Q. You are an American citizen, are you not ?
A. Partly so and partly not. (Fjaughter.) 1 was born in Germany.
Q. You have been made a citizen ?
A. 0, yes, sir. I will state, however, that I cannot very well serve as a juror
cause 1 am not in good health, as you will sec by that note.
The Court, (after reading the noto referred to by Mr. Acker.) He is afflicted
th rather a curious distaee. Dr. Garnett certifies that he in at present under
'professional care ; that he is troubled wiih a dise:ir»(i of the stomach, which
oauces at intervals sudden mailings of blood to the brain, educing attacks of
mnolency, which are^irresistible, and oblige him for the moment to go to sleep.
Mr. Bradley. Were you not discharged from a jury in the civil court on that
coont?
96 TRIAL OF JOHN H. 8URRATT.
A. Yes, sir, pretty mnch on that account ; I told the judge how I was afflicted.
The Court. Mr. Acker, you are excused ; it won't do to go to sleep on this
trial.
Dr. J. L. Ki DWELL was called, and being duly sworn was examined upon his
voire dire, as follows :
By the Court :
Q. I understand, Mr. Kidwell, that you have some special claims for exemp-
tion?
A. I have three letters from physicians in my immediate neighborhood stating
that my services are indispensable in my store at this time. I will state that I
have no one in my store at present but a couple of boys, both of my clerks being
. sick with the typhoid fever— one of them very ill.
The Court, lou are excused.
John T. Mitchell was called, and being duly sworn was examined on his voire
dire, as follows :
By the Court :
Q. Have you formed an opinion as to the guilt or innocence of the prisoner
at the bar ?
A. I have.
Q. In what way did you form that opinion ?
A. I formed my opinion from reading the testimony before the court that tried
the other parties. Also, by being thrown in contact with one of the witnesses
before that court, while travelling. We had a conversation tliat lasted a consid-
erable length of time. What he said made a very serious impression on my
mind.
Q. Do yon think this impression on your mind is such as would render yon
incapable of deciding impartially upon the law and the evidence which may
be elicited in the case ?
A. If I have ever conscientiously endeavored to come to a conclusion in regard
to a matter, I have in this particular case. If sworn as a juror I would strive
to do my duty both to the prisoner and the United States, but I should be afraid,
that under the circumstances, with the impressions that have been made upon
my mind, that it would be a lifelong regret with me if I should be compelled to
serve.
The Court. You are excused.
Jbnkixs Thomas was called, and being duly sworn was examined on his voire
dire, as follows :
By the Court :
Q. Have you formed an opinion in regard to the guilt or innocence of the
prisoner at the bar ?
Mr. Thomas. Will your honor allow me to call your attention to the certifi-
cate that I have laid on your desk? You will see by that that I am physically
incompetent.
The Court. Dr. Magruder certifies that Mr. Thomas is subject to violent at-
tacks of inflammatory rheumatism, and that a change of atmosphere is always
likely to produce them. I think it better to excuse you, Mr. Thomas.
Joseph L. Pearson was called, and being duly sworn was examined on bi^
voire dire, as follows :
By the Court :
Q. Have you formed an opinion as to the guilt or innocence of the prisoner
at the bar?
A. The reading of the evidence taken on the trial of the conspirators, aai
the events which have since taken place, leave an impression on my mind of the
. JWJftrf the prisoner.
J
TRIAL OF JOHN H. 8UBRATT. 97
Q. le that impression so strong as to render yon incapable of deciding impar-
tiallj upon the law and the evidence in the case ?
A. No, sir.
Q. Do you entertain any conscientious convictions as to the lawfulness of cap-
ital punishment ?
A. I am only opposed to capital punishment when conviction is had on cir-
cumstantial evidence.
Q. You are not opposed to capital punishment if the case is made out ?
A. No, sir ; not positively.
By Mr. Bradley :
Q. Are you a taxpayer ?
A. I never paid any taxes other than the school tax.
The Court. He is a resident here.
Mr. Bradley. There is no school tax now, but he says that he has paid a
school tax heretofore.
The Court. Is the payment of taxes required now in order to render a man
a competent juror?
Mr. Bradley. Yes, sir; he must be a taxpayer.
The District Attorney. Have you not paid the school tax?
Mr. Pearson. I have paid the school tax heretofore; I have never been as-
sessed to my knowledge.
The Court. I suppose the word " taxpayer " means a man who is liable to
pay taxes, whether he has paid them or not.
Q. Are you a housekeeper ?
A. Yes, sir.
Q. And h'able to pay taxes ?
A. Yes, sir.
The Court. I think he is a competent juror.
Mr. Merrick. We beg leave to except to the ruling of your honor in view
of the answer that he gave as to whether he had formed an opinion. Desiring to
have this exception reserved, we challenge him.
William Ballantynb was called, and being duly sworn was examined on
his voire dire, as f )llow8 :
By the Court :
Q. Have you formed an opinion in regard to the guilt or innocence of the
prirfont'r at the bar ?
A. I have.
Q. In what way have you formed that opinion?
A. From reading the testimony and from listening to the charge of the judge
^ho conducted the prosecution.
Q. Is your mind now under such a bias as to render yon incapable of decid-
iuf^ impartially between the United States and the prisoner at the bar, in case
yoa should be empannelled as a juror in this case?
A. I think not.
Q. Have you any conscientious convictions against the lawfulness of capital
panishroent f
A. I have not.
The Court. He is a competent jnror.
Challenged by the prisoner.
William Flinn was called, and being duly sworn was examined on his
fw dire, as follows :
By the Court :
Q. Have you formed an opinion in regard to the guilt or innocence of the
98 TRIAL OF JOHN H SDRBATT.
Mr. Flinn. I beg the court to excuse me ; I have a very sick child at home.
The Court. I think that is a good ground for excusing a person from service
here. You are excused.
Patrick Fleming was called, and being duly sworn was examined on hid
voire dire, as follows :
1^J the Court :
Q. Have jou formed an opinion in regard to the guilt or innocence of the
prisoner at the bar ?
A. I have.
Q. In what way did you form that opinion ?
A. From the evidence, from newspaper reports of it, and from conversations.
Q. Are you, in your own judgment, incapable of deciding impartially between
the United States and the prisoner at the bar ?
A. I think so, decidedly.
The Court. You are excused.
Jamrs Y. Davis was called, and being duly sworn was examined on his
voire dire, as follows :
By the Court :
. Q. Have you formed an opinion in regard to the guilt or innocence of the
prisoner at the bar ?
A. I have not.
Q. Do you entertain any conscientious convictions as to the lawfulness of
capital punishment ?
A. No, sir.
The Court. He is competent.
Mr. Davis was then accepted and sworn.
John Markritbr was called and duly sworn.
The Court. Dr. Riley certifies that Mr. Markriter is under his medical care,
and that he is wholly unfit to sit on the jury. He is therefore excused
Columbus Alexander was called, and being duly sworn was examined on
his voire dire, as follows :
By the Court :
Q. Have you formed an opinion in regard to the guilt or innocence of the
prisoner at the bar ?
A. I have.
Q. In what way ?
Q. From reading the testimony in the conspiracy trials.
Q. Do you think your mind is so biased as to render you incapable at this
time of deciding impartially in this case between the United States and the
prisoner at the bar ?
A. I should decide the case according to the law and the evidence.
Q. Do you entertain any conscientious convictions as to the lawfulness of
capital punishment?
A. I do not know that I have any conscientious scruples about the matter,
but I am opposed to capital punishment.
Q. As a political question ?
A. Yes, sir.
The Court. He is a competent juror.
Accepted and sworn.
William H. Baldwin was called, and being duly sworn was examined on
his voire dire, as follows :
TBIAL OF JOHN H. SURBATT. 99
By the Court:
Q. Have you formed an opinion in regard to the guilt or innocence of the
prisoner at the bar ?
A. I have.
Q. In what way have you formed it ?
A. From reading the evidence of the trial at the arsenal.
Q. Do you feel yourself under such a bias at this time as to render you in-
capable of deciding impartially between the United States and the prisoner at
the bar upon the evidence in the case ?
A. I do.
The Court. You are excused.
JoHV H. SiMMS was called, and being duly sworn, was examined upon his
voire dire as follows :
By the Court :
Q. Have you formed an opinion as to the guilt or innocence of the prisoner
at the bar?
A. I have not.
Q. Do you entertain any conscientious convictions as to the lawfulness of
capital punishment?
A. I do.
Q. Is that such a conviction as would render you incapable of rendering a
verdict according to the law and the evidence?
A. I think it would.
The Court. You are excused.
John T. Givb.\s was called, and being duly sworn, was examined on his
voire dire as follows :
By the Court :
Q. Have you formed an opinion in regard to the guilt or innocence of the
pritfoner at the bar ?
A. I presume I did do so, in common with others, when this case was on trial
some two years ago.
Q. Is the bias you received from that trial so strong as to render you incapa-
ble of deciding impartially at this time between the United States and the pris-
oner at the bar ?
A. I do not know that it would be.
Q. Do you entertain any conscientious convictions as to the lawfulness of
capital punishment ?
A. None whatever.
The Court. He is competent.
Challenged by the prisoner.
Washington B. Williams was called, and being duly sworn, was examined
on his voire dire as follows :
By the Court :
Q. Have you formed an opinion in regard to the guilt or innocence of the
priuouer at the bar ?
A. I have. «
Q. In what way did you form that opinion ?
A. From reading the papers, and conversing with the prisoner's friends and
^Qoauitances.
Q. Is that biaA so strong as to render you incapable of deciding impartially
upon the evidence ?
A. It 18.
The Court. You are excused.
100 TRIAL OF JOHN H. SURE ATT.
A. B. Stoughton was called, and being dulj sworn, was examined on his
voire dire as follows :
By the Court :
Q, Have you formed an opinion in regard to the guilt or innocence of the
prisoner at the bar ?
A. I have.
Q. In what way?
A. Mainly from reading the record of the trial of the conspirators.
Q. Is that opinion such as would render you incapable of deciding impartially
on the evidence between the United States and the prisoner at the oar?
A. I think it would.
The Court. You are excused.
Peter Hepburn was called, and being duly sworn, was examined on bis
7'oire dire as follows :
Q. Have you formed an opinion in regard to the guilt or innocence of the
prisoner at the bar ?
A. I have.
Q. In what way have you formed it ?
A. By reading the proceedings of the conspiracy trial.
Q. Is the bias upon your mind so strong as to render you incapable at this
time of deciding impartially upon the evidence ?
A. It is.
The Court. You are excused.
Wm. J. Rrdstrakb was called, and being duly sworn, was examined on his
voire dire as follows :
By the Court :
Q. Have you formed an opinion in regard to the guilt or innocence of the
prisoner at the bar ?
A. I have.
Q. How did you form that opinion ?
A. By reading the reports of the former trial — the conspiracy trial.
Q. Is your mind so strongly biased as to render you incapable of deciding
impartially upon the evidence in this case?
A. I think it is.
The Court. You are excused.
William McLean was called, and being duly sworn, was examined on his
voire dire as follows :
By the Court :
Q. Have you formed an opinion in regard to the guilt or innocence of the
prisoner at the bar ?
A. I did at the time of the trial of the conspirators.
Q. Is the bias left on your mind at this time so strong as to render you inca-
pable of deciding impartially according to the law and the evidence in this case?
A. I do not think it is.
Q. Have you any conscientious convictions against the lawfulness of capital
punishment.
A. No, sir.
James McGuire was called, and being duly sworn was examined as follows:
By the Court :
Q. Have you formed an opinion in regard to the guilt or innocence of the
prisoner at the bar ?
TBUL OF JOHN H. SURRATT. 101
A» I bave read the testimony given on the trial of the conspirators. I was in
New York at the time, and I formed an opinion at that time.
Q. Did it leave such a bias on your mind as to render you incapable of
deciding impartially on the evidence between the Uuited States and the pris-
oner at the bar I
A. I believe not-
Q. Do yon entertain any conscientious convictions against the lawfulness of
capital punishment ?
A. I do not.
The Court. He is a competent juror.
By Mr. Pierrepont :
Q. Mr. McGuire, do you pay taxes ?
A. I do. I would sav to the court, however, that I am a Gatholic, and I saw
in the New York Herald that the United States had taken exception to Cath-
olics being on the jury.
The District Attorney. I hope, Mr. McGuire, you will not hold us re-
sponsible for what appears in the public newspapers ?
Mr. McGuire. I would rather not serve, for the reason stated.
The District Attorney. I think it is very wrongfor the newspapers to pub-
lish such statements.
The Court. If the newspapers say so it is to be presumed that the contrary
is the fact.
Challenged by the district attorney.
John Wilson was called, and being duly sworn, was examined on his v&ire
dire as follows :
By the Court :
Q. Have you formed an opinion in regard to the guilt or innocence of the
prisoner at the bar 1
A. I have.
Q. How did you form that opinion 7
A. From reading the proceedings had at the trial of the conspirators.
Q. Is that bias on your mind so strong as to render you at this time incapa-
ble of deciding impartially on the evidence between the United States and the
prisoner at the bar ?
A. It has rendered me altogether one-sided, your honor.
The Court. You are excused.
William H. Barbour was called, and being duly sworn, was examined on
Ma voire dire as follows :
By the Court :
Q. Have you formed an opinion in regard to the guilt or innocence of the
prisoner at the bar ?
A. I have.
Q. In what way 1
, A. By the developments of the trial of the conspirators at the arsenal.
\ Q. Are you under such a bias now as to be incapable of deciding according
to the law and the evidence in this case, between the United States and the
prisoner at the bar 1
A No, sir.
Q. Yoa think you are capable }
A. Yes, sir.
Q. Do yon entertain any conscientious convictions against the lawfulness of
102 TRIAL OF JOHN H. SURBATT.
A. I do. I have been refused service on the jury over and over again on that
accoant.
The CorRT. You are excused.
George T. Sheriff was called, and being duly sworn, was examined on his
roire dire as follows :
By the Court :
Q. Have you formed an opinion in regard to the guilt or innocence of the
prisoner at the bar I
A. I have.
Q. In what way ?
A. From the evidence.
Q. Are you inculpable of deciding impartially between the United States and
the prisoner at the bar, on the evidence that might be brought before you io
this case 7
A. The evidence would have to be very explicit to change my views.
Q. Do you believe that you could not weigh the evidence impartially between
the government and the prisoner I
A. I think I could provided it was explicit enough.
Q. What I want to know is this : whether, in weighing the evidence, your
mind could do justice to both sides ?
A. It would have to be more explicit on one side than the other.
The Court. I see you ar.» bia^I. You are excused.
Samuel Bacon was next called, but it being announced that he was confined
to his house by sickness, his name was passed.
JoHX Alexander was called, and being duly sworn, was examined on his
^roirr dtre as follow? : .
By the Court :
Q. Have you formed an opinion in r^.ird to the guilt or innocence of the
pri Signer at the bar f
A. 1 have.
Q. In what way 7
A, Frvnn the testimony given on the conspiracy trials.
Q. Is the bias on your mind so strong as to n^nder you incapable of deciding
iraiKiniallv on the evidence between the United States and the prisoner at the
Uir?
A. Yt-s, sir.
The Court. You arv^ oxouseil.
William Bkvan was calM. and being duly sworn, was examined on his
i>i*i 'Y ^itnr as follows :
By the Court:
^« Have yon fonuiHl an opinion in xvgard to the guilt or innocence of the
pruKUier at tiie bar f
A. I havi',
^. In what way f
A« Fit^m rvadtug ih^ evidence in the i.v»sp:racy trial.
^, la that hia« m^ strong U|H>n yvnir mind as to lender yon incapable of de-
fMing knpariially on iht^ evukuvv Wtw^yu the l'ui:ed States and the prisoner
TRUL OF JOHN H. 8UBRATT. 103
A. I think it is.
Excused.
L<)T Flannerv was called, and beiag duly sworn, was examined on his voire
dire as follows :
By the Court :
Q. Have you formed an opinion as to the guilt or innocence of the prisoner
at the bar I
A. I have.
Q. In what wny ?
A. From being present at the military trial.
Q. Is that bias so strong as to render you incapable of deciding impartially
at this time ?
A. It is, most undoubtedly.
Excused.
Patrick White was called, and being duly sworn, was examined on his
roire dire as follows :
By the Court :
Q. Have you formed an opinion in regard to the guilt or innocence of the
prit*ouer at the bar ?
A. Yes, sir.
Q. How have you formed it 1
A. From the tentimony given on the trial of the conspirators.
Q. Is that bias so strong as to render you incapable of rendering an impar-
tial verdict in this case between the United States and the prisoner at the bar ?
A. It is.
Excused.
William J. Murtagh being called, was sworn and examined on his voire dire
z» follows :
By the Court :
Q. Have you formed an opinion in regard to the guilt or innocence of the
priijoner at the bar 1
A. I have.
Q. In what way ?
A. From reading the testimony before the military commission.
Q. Is your mind so biased as to render you incapable of rendering an im-
partial verdict according to the law and the evidence ?
A. No, sir.
Q. Have you any conscientious convictions against the lawfulness of capital
punishment ?
A. None whatever.
The Court. He is competent.
Mr. MuRTAUH. I desire to state that I am a United States salaried officer,
^d am, therefore, I presume, exempt under the law.
The Court. Yes, if that is the case you are excused.
Charlrs H. Armrs was called, and being duly sworn, was examined on
^i« voire dire as follows :
By the Court :
Q. Have you fonned an opinion in regard to the guilt or innocence of the
ItrifeAnov of flio Kai*2
104 TRIAL OF JOHN H. SURRATT.
A. I have not.
Q. Have you any conecientioas ecrnples agaiDBt the lawfulness of capital
punishment ?
A. No, air.
Mr. Bradlbv. Are you a tax payer?
A. Yes, sir.
Challenged by the prisoner.
Jamb:$ M. Latta was called.
The CorRT. Dr. Johnson certifies that Mr. Latta has been confined to his honae
yesterday by sickness, and is not able to be out.
Jambs Small was called, and being duly sworn, was examined on his voire
dire as follows :
By the Court :
Q. Have you formed an opinion as to the guilt or innocence of the prisoner
at the bar in this case ?
A. I have not.
Q. Do you entertain any conscientious convictions against the lawfulness of
capital punishment t
A. I do not. I wish to state, your honor, that I am not a tax-payer — that
I am not the holder of any real estate.
Q. Do you keep house ?
A. Yes, sir ; I am a householder.
The Court. You are competent.
Challenged by the prisoner.
Jo.XATHA.N Kirk WOOD was called, and being duly sworn, was examined on
his voire dire, as follows :
By the Court :
Q. Have you formed an opinion in regard to the guilt or innocence of the
prisoner ?
A. I have.
Q. In what way ?
A. From the reports published of the proceedings in the conspiracy trial.
Q. Is that bias on your mind so strong as to reuder you incapable of dedd-
ing impartially on the evidence ?
A. 5(o. sir.
Q. Do you entertain any conscientious convictions against the lawfulness of
capital punishment ?
A. I do not.
Challenged by the district attorney.
[This challenge exhausted the number allowed to the United States, they
being allowed five and the prisoner twenty.]
Amos Hunt was called, and being duly sworn, was examined on his voire
dm as follows :
By the Court :
Q. How old are yon I
A. I wiU be 64 years old the loth day of August.
Q. Have Toa expreaaed an opinion in regard to the guilt or innocence of the
at ike bar I
TRIAL or JOHN EL 8UREATT. 105
A. No, Bir ; I know nothing about it.
Q. Do jou entertain any conscienttous convictione in regard to capital pun-
ishment ?
A. No, Bir.
Challenged by the prisoner.
Jacob Ramsbbrg wad called, and, being duly sworn, was examined on his
voire dire as follows :
By the Coubt :
Q. Have you formed an opinion in regard to the guilt or innocence of the
pri^ner at the bar ?
A. Nothing more than impression — not an opinion.
Q. Is that impression on your mind such as to render you incapable of ren-
dering an impartial verdict ?
A. I think not.
Q. Have you any conscientious convictions against the lawfulness of capital
punishment 1
A. I have not.
Challenged by the prisoner.
Gborqb Clbndbnin was called, and being duly sworn, was examined on his
voire dire as follows :
By the Court :
Q. Have you formed an opinion in regard to the guilt or innocence of the
prisoner at the bar ?
A. I have.
Q. In what way ?
A. Unfavorable to the prisoner.
Q. What I meant was how you formed it ?
A. From the evidence.
Q. Is that impression or opinion of yours such as to render you incapable of
deciding impartially from the evidence ?
A. No, sir.
Q. Do you entertain any conscientious convictions against the lawfulness of
capital punishment?
A. No, sir. I would say, sir, I would like to be excused on account of the
Wmess in ray office. Mr. Middleton knows what my duties are ; I am in charge
of the office at Glen wood Cemetery, and have to be there 365 days in the year.
% Bon, who assists me, is a witness on this trial.
The CoiTRT. That is necessary work, and entitles you to an excuse. You
^ therefore, relieved from attendance here.
Benjamin F. Morsbll was called, and being duly sworn, was examined on
tis voire dire as follows :
By the Court :
Q. Have you formed an opinion in regard to the guilt or innocence of the
prisoner at the bar ?
A. I have.
Q. How did you form it ?
A. I formed such an opinion as I suppose every man in the community has
Ho leads and thinks. 1 formed this opinion from reading and r^ecting upon
^ evidence given on the trial of the conspirators.
106 TRIAL OF JOHN H. SURRATT.
Q. Does that amount to Bucb a bias on yonr mind as to render you incapable
of an impartial verdict between tbe United States and the prisoner at the bar ?
A. No, sir.
Q. Do joa entertain any conscientious convictions against the lawfulness of
capital punishment 1
A. >ione at all.
Accepted and sworn.
John W. Wray was called, and being duly sworn, was examined on bis
voire dire as follows :
By the Court :
Q. Have you formed an opinion in regard to the guilt or innocence of the
prisoner at the bar ?
A. I have.
Q. How have you formed that opinion ? ,
A. From the newspaper reports of the trial of the conspirators.
Q. Does that opinion amount to such a bias as to render you incapable of
doing impartial justice between the United States and the prisoner at the bar ?
A. Yes, sir.
Excused.
John Marburv, Jr., was called, and being duly sworn, was examined on bis
voire dire as follows :
By the Court :
Q. Have you formed an opinion in regard to the guilt or innocence of the
prisoner at the bar ?
A. The impression was made on my mind at the time of the trial, and from
his fi^uing away.
Q. Does that impression amount to such a bias of your mind as to render jou
incapable of deciding impartially according to the law and the evidence ?
A. I think not.
Q. Have you any conscientious scruples against the lawfulness of capital pun-
ishment ?
A. I have not.
Challenged by the prisoner.
Ephraim K. Whbblbr was called, and being duly sworn, was examined on
his voire dire as follows :
By the Court :
Q. Have you formed an opipion in regard to the guilt or innocence of the
prisoner ?
A. Yes, sir.
Q. How have you formed that opinion ?
A. From the newspaper reports of the conspiracy trial.
Q. Does that opinion amount to such a bias of your mind as to render joa
incapable of doing impartial justice between the United States and the prisoner
at the bar ?
A. I do not think it would.
Q. Have you any conscientious convictions against the lawfulness of capital
punishment ?
A. No, sir.
The Court. He is a competent juror.
Challenged by the prisoner.
TRIAL OP JOHN H. SURRATT. 107
C. >r. SioussA was called, and being dulj sworn, was examined on his voire
dire aa follows :
By the Court :
Q. Have 70a formed an opinion in regard to the guilt or innocence of the
prisoner at the bar ?
A. I have.
Q. How did you form that opinion ?
A. From the evidence on the trial of the conspirators.
Q. Does that opinion amount now to such a oias as to render you incapable
of deciding impartially between the United States and the prisoner at the bar ?
A. It does.
£xcui>ed.
Benjamin Swarmy was called, and being duly sworn, was examined on his
voire fiire as follows :
By the Court :
Q. Have you formed an opinion in regard to the guilt or innocence of the
prisoner at the bar ?
A. I have.
Q. How did you form that opinion ?
A. From reading the evidence on the conspiracy trial.
Q. Does that opinion so bias your mind at this time as to render you incapas
ble of weighing impartially the evidence on this trial between the United State-
and the prisoner at the bar ?
A. It would require a great deal of evidence to remove it.
Q. You think it would require more evidence on one side than it would on
the other ?
A. Yes, sur.
Excused.
Adam Gaddis, Jr., was called, and being duly sworn, was examined on his
voire dire as follows :
By the Court :
Q. Have you formed an opinion in regard to the guilt or innocence of the
prisoner at the bar 1
A. I have.
Q. How did you form that opinion ?
A. From what I read of the evidence given on the conspiracy trial.
Q. Is that bias on your mind so strong at this time as to render you incapa-
ble of giving an impartial verdict between the United States and the prisoner at
ibebar?
A. I think not. I think I could decide according to the evidence and the. law.
Q. Do you entertain any conscientious convictions against the lawfulness of
capital punishment ?
A. I do not.
By Mr. Bradley :
Q. Is not your store on the road leading down to the Navy Yard bridge ?
A Yes, sir.
Q. Is it not a great place of resort for persons who live across the Eastern
branch 1
A. Yes, sir.
Q. Has not this subject been greatly discussed in your store and in your
bearincf %
108 TRIAL OF JOHN H. 8UBRATT.
A. Yes, sir.
Q. And does that, together with what yon have read, form the ground of
your opinion ?
A. Yes, sir.
Q. Have yon not had conversations with persons who were witnesses on that
trial?
A. Yes, sir.
Q. And did such conversations assist in forming your judgment ?
A. I do not know that they did.
Q. You have had conversations with witnesses on that trial, and how far they
have affected your judgment you do not know ?
A. I do not know particularly how far they have affected my judgment.
Mr. Bradley. I submit that he is not a competent jurar.
The Court. He says there is no such bias on his mind as would render him
incapable of deciding impartially according to the law and the evidence.
Mr. Bradley. In ordinary cases I would have the utmost confidence iivhim,
for I have known Mr. Graddis all his life.
The Court. I think he is a competent juror.
Challenged by the prisoner.
Thomas E. Clark was called, and being duly sworn, was examined on bis
voire dire as follows :
By the Court :
Q. Have you formed an opinion in regard to the guilt or innocence of the pris-
oner at the bar ?
A. I have.
Q. Did you form that opinion from the evidence elicited at the trial by the mili-
tary commission ?
A. Yes, sir.
Q. Have you such a bias on your mind at this time as to render you incapa-
ble of deciding impartially between the prisoner at the bar and the United States
on the evidence that might be brought before you I
A. I feel that I have.
£xcuscd.
William Lord was called, and being duly sworn was examined on his voire
dire as follows :
By the Court :
Q. Have you formed an opinion as to the guilt or innocence of the prisoner at
the bar?
A. I have.
Q. By reading the newspapers ?
A. Nothing farther.
Q. Is it such a bias on your mind as to render you incapable of impartiallj
deciding upon a verdict ?
A. I think not.
Q. Have you any conscientious convictions against the lawfulness of capital
punishment ?
A. None whatever.
Challenged by the prisoner.
Horatio Browning being called,
The Court said : Dr. Stone sends me a certifipiate certifying that Mr. Brown-
ing has been under his professional charge for many years past, and that the
TRIAL OF JOHN H. SUBBATT. 109
re of his complaint is such as to render him whollj anfit to sit on anj jorj
sensed.
BNJAMIN E. GiTTiNGS was callcdi and heing sworn, was examined on his
; dire as follows :
Bj the Court :
. Have you formed an opinion in regard to the guilt or innocence of the
>ner at tne har ?
T. GiTTiNus. May it please your honor I have been summoned on the next
id jury.
he Court. I think this case takes priority of the grand jury.
. Have you formed an opinion in regard to the guilt or innocence of the
)ner at the bar ?
. Partially so, from the evidence I read in the papers of the trial that took
e down at the arsenal.
;. Are you conscious of such a bias on your mind at this time as to render
incapable of coming to an impartial verdict according to the law and the
ence between the United States and the prisoner at the bar ?
. No, sir.
,. Have you any conscientious convictions against the lawfulness of capital
ishmcnt ?
. Not a bit, sir.
'be Court. He is a competent juror.
T. Oittinos. I hope the judge will excuse me. I am the only male about
store, and I have to open and close it every morning and evening,
[r. Mbrrigk. I would simply say to your honor that Mr. Gittings has one
he most enterprising wives in the city of Washington.
Ir. Gittings, (good-hnmoredly.) I hope that will have no weight with the
orable court.
'he Court. Mr. Gittings, this is a case in which the court feels justified in
baling to the public spirit of the city. Citizens must make some personal
ifices for the public interest.
Ir. Gittings. There are so many others here who can serve without any
it inconvenience to their business, that I hope your honor will consent to
ase me.
?he Court. I would be glad to do so, but you are so well qualified as a
fraan that I do not feel justified in doing so. There is no citizen who has
bis private affairs to attend to. A man who has no business is not fit to be
QTjman. I hope you will be able to make such an arrangement as will
'e you from any loss.
Accepted and sworn
William M. Galt was called, and being duly sworn, was examined on his
\Tt dire as follows :
By the Court :
Q. Have you formed an opinion in regard to the guilt or innocence of the
risoner I
A. I have.
Q. 1 suppose from the newspaper reports of the trial of the conspirators t
A. Yes, sir.
Q. Are you conscious of such a bias on your mind at this time as to render
(HI incapable of deciding impartially on the evidence between the United States
i^d the prisoner at the bar ?
I
110 TRIAL OF JOHN H. 8URBATT.
A. I think I have not.
Challenged by the prisoner.
N. Gleary McKnew was called, and being duly sworn, was examined on his
voire dire OB follows :
By the Court :
Q. Have you formed an opinion in regard to the guilt or innocence of the
prisoner at the bar ?
A. I have not.
Q. Do you entertain any conscientious convictions against the lawfulness of
capital punishment ?
A. I do not.
The Court. He is competent.
Challenged by the prisoner.
Lemuel Towers was called, and being duly sworn, was examined on his
voire dire as follows :
By the Court :
Q. Have you formed an opinion in regard to the guilt or innocence of the
prisoner ?
A. T have.
Q. How ?
A. From the proceedings of the trial of the conspirators, and from conversa-
tions with officers on the trial.
Q. Have vou such a bias on your mind as to render you incapable of deciding
impartially nrom the evidence between the United States and the prisoner at
the bar?
A. I have no such bias. I believe I could give him a fair trial.
Q. Do you entertain any conscientious convictions against the lawfulness of
capital punishment ?
A. No sir.
By Mr. Bradley :
Q. How is your health ?
A. I am suffering a great deal with rheumatism. I will say here that I can
bring a surgeon's certificate that my health is such as not to admit of my sitting
on a jury.
Q. Do you feel capable of going through a protracted trial ? Is your health
such as to enable you to do so ?
A. I think not.
Excused.
George T. Lanqley was called.
The Court. Dr. Howard certifies that Mr. Langley's health is such as to
render it unsafe for him to sit as a juror. I take it the doctor's certificate is
true, although I must say Mr. Langley's appearance does not indicate it.
Mr. Lanoley# I am a little flush just now.
Gilbert M. Wight was called, and being duly sworn, was examined on his
voire dire as follows :
By the Court :
Q. Have you formed an opinion in regard to the guilt or innocence of the
prisoner ?
TRIAL OF JOHN H. SURRATT. Ill
A. I have.
Q. How did you form that opinion ?
A. From reading the evidence on the conspiracy trials.
Q. Are vou conscious of having such a bias on your mind at this time as
would render you incapable of giving an impartial verdict between the United
States and the prisoner?
A. I do not think I could give such a verdict.
Excused.
Augustus Schneider was called, and being duly sworn, was e^jamined on his
voire dire as follows :
By the Court :
Q. Have you formed an opinion in regard to the guilt or innocence of the
prisoner at the bar?
A. I have.
Q. How?
A. From reading the proceedings of the trial at the arsenal. I will here state
that there is another reason why I think I ought to be excused. I am at work
up in the post office, and there is nobody there except myself to attend to it. I
will have to stop the work if I am required to sit as a juror here.
Excused.
Robert M. Combs was called.
The Court. ITie mayor certifies that Mr. Combs is one of the corporation
weigh masters in the Sixth ward, and is at this time very much engaged in that
business.
The District Attorney. Is that a good excuse, your honor? It is not made
so in the act.
The Court. It is a public employment.
Excused.
Charles E. Rittbnhousb was called.
The Court. Mr. Rittenhouse is subject to some infirmity that renders him
unfit to sit as a juror. I do not know what it is. He is excused.
Joseph 6. Waters was called, and being duly sworn, was examined on his
m'rc dire as follows :
By the Court:
Q. Have you formed an opinion in regard to the guilt or innocence of the
prisoner at the bar?
A. I have.
Q. How did you form it?
A. From reading the proceedings of the trial of the conspirators.
Q. Have they left' such an impression on your mind as to render you incapable
ofreudering an impartial verdict between the United States and the prisoner at
the bar?
A. They have, to a certain extent. .
Q. Does that bias go to such an extent that you could not weigh the evidence
itttpartially f
A. It would certainly require a very large amount of evidence to get rid of
^e impression left upon my mind.
The Court. That is a bias. Ton are excused.
I
112 TRUL OF JOHN H. 8UBRATT.
William W. Birth was called, and being duly sworn, was examiaed on hia
voire dire as follows :
By the Court:
Q, Have you formed an opinion in regard to tbe guilt or innocence of the
prisoner at the bar?
A. I have.
Q. How did vou form it ?
A. From reading the testimony in the conspiracy trial.
Q. Is the bias upon your mind so great as to render you incapable of weighing
the evidence in the case impartially?
A. I think not.
Q. Do you entertain any conscientious convictions as to the guilt or inno-
cence of the prisoner at the bar ?
A. No, sir.
The Court. He is a competent juror,
Mr. Birth. I would suggest, your honor, that I am summoned on the next
grand jury.
The Court. O, well, if you are sworn in this case it will be a good excuse
for getting off from service there. The other court would hardly expect you
to serve there if you are engaged here.
Mr. Birth was then accepted.
The District AtT()RNEY. I would Ftate, your honor, that we wish in this
case to pursue the course, ordinarily adopted in such cases, of having the eleven
jurors sworn now, and the twelfth remain unsworn until Monday morning, in
order that the jury may be allowed to separate and be at liberty ou to-morrow>
(Sabbath,) and thus be able to make such arrangements as they may desire before
entering upon the trial on Monday.
Mr. Bradlbv. That is all very well if we had not understood from our learned
brothers that, unless the whole panel was sworn in to-day, there is no panel;
that the case is not made up. We learn from them that that is their interpreta-
tion of the law, and. therefore, if they should succeed in maintaining that view,
this week's work will be lost unless this jury is sworn in before Monday. We
can agree among ourselves very readily that there may be a recess from noir
until some time this evening, when the jury can be sworn in. But unless that is
done — unless the panel is made complete — if your honor will look at the statutes
you will find that these gentlemen will accomplish in this way just what they
would have accompli$«hed by their motion which has been denied. To acquiesce
in the suggestion of the learned district attorney will defeat all the work of tbe
past week.
Mr. Pikrrepont. If your honor please, this question was up before Judge
Fisher, and the conclusion he then announced from the bench, and which I sop-
posed was concurred in by counsel on both sides, was this, " That should the
jury be sworn in before the meeting of the next term, to wit, 10 o'clock on Mon-
day morning, it was all that was required.*' That is the view then expressed,
as I understood, and, I repeat, concurred in by counsel on both sides. The
jurors, therefore, being obtained, let the swearing in of the twelfth one be de-
ferred until Monday morning, and thus will the necessity of keeping the jury
together over Sunday be avoided.
Mr. M BR RICK. If your honor please, I think my learned brother is in error
as to the conclusions to which the Judge and counsel came. I say this with all
due respect It was suggested when Judge Fisher was on the bench that the
time was very much limited within which to get a jury, Saturday night being
fixed as the extent of that limitation. I suggested that at common law, as I
understood it, a session of the court or a term of the court never ended until the
TRIAL OF JOHN H. 8URRATT. 115
first day of the succeeding term, and that the court ou^ht to be called on the
first day of the succeeding term as of the old term, and I believe that to be the
rule, that this court may be called on Monday morning. There is great doubt,
however, as to %hat may be done by the court on that first day of the new term
acting as of the old term, and I find that the general rule is that nothing can be
done except the mere correction of its records as of the old term ; that you can-
not then enter upon new business. Now, the swearing of the twelfth juror be-
ing the completing of tbe pi^nel, would be the entering upon the case anew, and
the act of Congress says that the case can only go on where a new term inter-
Tenos during its progress — where the jury has been impanelled, and it is neces-
sary, therefore, to complete the edipanelling in order to get rid of the question
of doubt in reference to the matter. It certainly is expedient that the panel
should be completed to-day.
Tho District Attorn ky. If your honor please, our only object is, if pos-
sible, to avoid keeping the jury unnecessarily in confinement over Sunday. I
would suggest, sir, that we might adjourn this court over to meet at 9 o'clock
on Monday morning, in order to meet the view of the gentlemen.
Mr. Merrick. Yes ; but at common law you cannot divide a day.
The District Attorn b v. I am distinct in my recollection that Judge
Fisher
Mr. Mkrrick. You made a similar suggestion to Judge Fisher, and he said
laughingly that you might even sit on Sunday ; that he would sit right straight
through.
Mr. PiBRRBPONT. Gould not this court be adjourned to Sunday night? It
seems to me that if we can avoid keeping this jury over Sunday it would be
well to do so.
The Court. Sunday is a '• dies nan juridicus.**
Mr. PiBRRBPOiVT. Well, sir, we will agree to anything that is proper by which
this jury can have their freedom on Sunday.
Mr. Bb ADLBY. If the gentlemen will agree that the prisoner can consent to the
jury separating after being sworn until Monday morning, there will be no diffi-
culty whatever in accommodating the jury in the way of which the gentleman
speaks. Their doctrine, however, is that the prisoner can consent to nothing ;
that by the most formal stipulations he cannot waive any of his rights. We
apprehend, therefore, that difficulty may arise in the event of the jury separat-
ing without being sworn. I do not see how the end which the gentleman says
he aims at, of giving the jurors time to make necessary arrangements for sitting
on the trial, can be obtained otherwise than by letting the jurors go now until
9 or 10 o'clock to-night, and then resuming the session of the court at that time
to have them sworn in.
The Court. I would like to see the language of the act.
Mr. PiBRRBPONT. I supposed the proposition we made could not by any pos-
BibOity work against the prisoner.
Mr. Bradley. I am not quite sure, if your honor pleases, who is to preside
oyer the trial of this case ; and what his view may he of the question to-day
made by the gentlemen, I do not know ; and we do not think it proper to run any
risk about this matter. The prisoner is now upon his trial; a jury has been
selected, and is ready to be empanelled ; and tlie law says unless it is empan-
elled before the next term, the case shall be continued.
Mr. PiBRRBPONT. We have no other object in view than the securing for
these jurors the privilege of separating until Monday. Any mode which may
be suggested that will accomplish that object we will readily adopt.
Mr. Mbrrick. We are as desirous as the gentleman can be, of accommodating
tbe jury, but we do not wish to embarrass tbe proceedings in the ease.
8
114 TRIAL OP JOHN H. 8URRATT.
Mr. Bradley. I do not see bow we can bind tbe United States to any such
Btipnlatiou as is proposed.
Tbe District Attorney. The language of the law is this :
Mr. Pierre PONT. So far as I can understand, the panel has now been formed,
and I cannot see why, under that statute, the panel having been formed, the
court cannot adjourn ; but of course that is a matter for your honor to determine.
Mr. Bradley. Does my learned brother mean to say that a jury is empan-
<clled in a cause before it is sworn 1
Mr. Pierrepo.nt. It is generally sworn in connection with it.
Mr Bradley. There is no panel in this particular case.
Mr. Merrick. When is a jury empanelled ?
Mr. PlERREPONT. That is the question.
Mr. Merrick. The jury cannot be said to be empanelled until the last man
is sworn upon the issue.
Mr. PiBRREPONT. I do not want to appear or claim to be at all learned upon
the technical question as to when a jury is and when it is not empanelled, but
my own impression is that when a jury is ordered into their seats, the panel
is completed. The swearing of them is proceeded with in diHeriBnt ways in
different courts. In some courts they are sworn separately, and in others again
they are all sworn together.
The Court. We have always understood here, I think, that the jury is re-
garded as empanelled after the clerk pronounces the words : '^ Gentlemen of
the jury, stand together and hear the evidence.'* That closes the empanelling
of the jury.
Mr. Bradley read from Wharton's Criminal Laws as follows: " Until the joiy
are all sworn, as has been already noticed, it is not necessary that they BhoM
be kept together. They are not empanelled until the whole jury is sworn.''
The Court. I think the best way under this law is to have the jury empan-
elled without delay.
Mr. Bradley. I suggest to your honor that we might take a recess until ten
o'clock to-night, and then swear in the last juror.
The Court. If agreeable to counsel the court will make that order.
The District Attorney. If your honor please, attachments were issued
against Messrs. George H. Plant and William P. Dole. Those gentlemen are
now in court ; what shall be done with them ?
The Court. 0, we are so happily through, now, that I am not disposed to
punish them. They are discharged.
After an order for the discharge of all jurors who had been summoned and
not called, the court took a recess till ten o'clock p. m.
EVEMNU SESSION.
The court reassembled at ten o'clock, evening, in the circuit court room,
pursuant to adjournment at half past one o'clock.
The prisoner having been brought into court. Judge Wylie announced the
fact, and asked the counsel if they had any proposition to make.
Tbe jurors were then called, and Mr. Birth, the twelfth juror, was about to
be sworn, when Mr. Pien*epont said he did not know what conclusion had been
arrived at in reference to a stipulation allowing the jury to separate.
The Court said he knew nothing of a stipulation, and could only pass upon
such agreement as was consented to by counsel.
Mr. PlERREPONT said there seemed to be a doubt in the mind of the district
attorney whether the jury could separate after having been empanelled int
murder trial.
TRIAL OP JOHN H. SURRATT 115
ir. Bradlby said the whole flubject was a matter of agreement between couu-
and he proposed to read a stipulation that the defence had offered,
rbe Court said he had no desire to hear it, because all parties must first
ee» and it was for the court to decide what had been agreed upon.
fr. Mbrrick said the defence desired to have the last juror sworn, and then
dlow the jurors to separate until Monday morning.
The Court said he did not wish to hear the contents of any agreement,
ess it had been consented to on all sides.
ir. Bradley asked if the counsel should agree that the jury should be dis-
rged, whether such agreement would meet the approval of the court.
The Court said he was clearly of the opinion tnat, nnder the act of Con-
ss, the jury must be empanelled and sworn. The act uses the word
elled, but the panel is not completed until the jury is sworn. The word
elled was a technical word, but it had evidently been used by the lawmaker
to proper sense, and it is therefore necessary that all the jurors shall be sworn.
[r. Birth, the twelfth juror selected, was then sworn.
[r. BuADLBV said that, with the permission of the court, he would submit a
ion that the indictment should not be read, or the jury fully charged in the
^ ontil Monday morning, and that some stipulation be agreed upon whereby
jury should be discharged.
lie counsel for the prosecution wrote out a stipulation to the effect that the
' might be discharged until Monday morning, with the consent of the court,
without prejudice to either party.
[r. Bradlbv said they could not consent to that. The defence offered a
dation that the same jury should be retained, and that there should be no
ndice to either party, in order that some of the questions that had heretofore
iged the attention of the court might again arise. The defence made the
r, and it was for the prosecution to accept or reject.
[r. PiBRRBFONT said the defence should accept the proposition of the pro-
idon« or the whole question was at an end.
[r. Mbrrick said the prosecution had so modified the stipulation submitted
the defence as to make much difference. Under the stipulation offered by
prosecution the whole subject may be brought up, and the court may be asked
^anew.
[r. Pibrrepont said the stipulation of the prosecution was that, if the court
Beoted, the jury might separate without prejudice to either party.
Ir. Bradley said the defence stipulated in such a way as to prevent the
stion from being reopened, while the stipulation of the prosecution leaves the
)le subject open.
The Court said it appeared counsel could not agree, and he would, there-
S put the jury in charge of the bailiff.
Ilr. PiBRREPONT said the stipulation offered by the defence covered a great
1. The prosecution was willing to stipulate that the jury should separate,
they could not agree to waive their exception to the mode of empanelling
jury. They were willing to take this jury, however.
£r. Bradley said the prosecution, it appeared, were willing to take this jury,
proposed to raise the question of the legality of the panel. It was this that
defence wanted to prevent, as they desired not to open the question of the
tiity of the panel on Monday.
rhe Court said, he understood that the prosecution was not willing to waive
exception they had taken to the empanelling of the jury.
ir. PiBRRBFONT said he would state candidly that the prosecution desired
jury, as they believed them to be good and fair men, and that was all they
wanted. If, on Monday, it should appear to the court that the jury was not
lly empanelled. Judge Cartter, who would be here at that time, could dis-
116 TRIAL OF JOHN H. SURRATT.
charge the jury, and immediately subpoena them over. They would agree to
any reasonable stipulation, but they wanted all things done fkirly, as the trial
promised to be a long and tedious one.
Mr. Mr R RICK argued that to make the trial legal the jury should be em-
panelled to-night. On Monday Judge Cartter would open the June term of the
criminal court, and it was necessary that the jury should be empanelled at this
term.
Mr. Bradlry said that the whole action of the prosecution seemed to look as
though an appeal was to be taken from the decision of Judge Fisher and Judge
Wylie to Chief Justice Cartter, and it was to prevent all objection on Monday
that the defence desired to have an explicit stipulation consented to. If the
prosecution desired to have the jury separate, they could agree to that stipnU-
tion.
The District Attorney said it seemed to him that the stipulation of the
United States was perfectly fair, namely : That the jury separate until Mondaj
without prejudice to the rights of either party.
Mr. Bradlry. What objection have you to our stipulation ? We have not
heard it yet.
Assistant District Attorney Wilson. We have an exception on tile to the
empanelling of the jury. The other side asks us to deprive ourselves of that
advantage.
Mr. Bradley. We will accept that, and will modify our proposition in that
way, but not deprive ourselves of the right of the trial by jury.
Mr. Merrick was willing to say that the terms of the stipulation were not to
apply to any exception taken by the United States, or appeal to the court in
general term.
Mr. Pirrrrpont. If you arc willing to let the jury separate, and the caee
stands as it does now until Monday, this stipulation covers it.
Mr. Bradlry. Counsel on the other side have stated their object to be to save
this exception. If there is anything else to save, let us know.
Mr. Pirrrrpont. We only wish to give the jury the benefit of a separation.
We don't wish either party to waive any right.
Mr. Mrrrick. The gentleman stated the question about the empanelling of
the jury which Judge Cartter may entertain on Monday; but there was no ex-
ception Judge Cartter could entertain. It could only be entertained by the court
in general term.
Mr. Pirrrrpont. I have no doubt about that.
Mr. Mrrrick. The gentleman said the exception might come before Judge
Cartter.
Mr. Pirrrrpont. I said whoever might preside ; and to avoid any question
about the mode of empanelling the jury, we are ready to stipulate that this same
jury shall continue to be the jury : but we did not want to have the question en-
tirely out of the way.
Mr. Bradlry. It is impossible to come to an accommodation with such
diverse views. We want the jury to go home without reservations or questions
as to the empanelliDg.
The Coi RT. Why not t gentlemen, clmrg^ the jury to-night?
Mr, Braui.kv. Wi* ^lalT a@k your honor to hme the indictment read.
TIn* indictment on which the *prl#ancr w aa Arraigned waj? accordingly read to ;
thi> jury*
Iho Cl*tl«K, ilksr rottdioe, tuid : *'And l*y thi« indictment the prisoner pletdi
tHH fgutltyt wA Ijjte htahldf wpen hig c«>imtry for Irialt which coantryyeaarB."
■ *" ihi hiry be allowied to separate till MoiAy
^el. a^ks thh privilege for the JQiJ*
TRIAL OF JOHN H. SDRRATT. 117
Messrs. Pibbrbpont and Carrinotox. We don't object. We offered the
stipulation.
Mr. Bradlby. Notliiog like it.
The Court. By consent of counsel on both sides, the jary will be permitted
to separate. The clerk will enter this upon the record. To the jury : Be here,
gentlemen, on Monday morning at ten o^clock. I do not know that I shall have
the pleasure of seeing you. The jury are admonished to avoid conversation with
anybody on the subject of this cause. If you are thus approached, you should
regard it as a personal indignity. I am inclined to think that under the act of
Congress this term is extended. I shall not, therefore, order the court adjourned
in course, but adjourned until Monday morning at ten o'clock.
The court was accordingly adjourned.
MoiNDAV, June 18, 1867.
Criminal Court — Associate Justice Fisher, presiding.
The court was opened at ten o'clock, when the clerk proceeded to call the
Dames of the jurors empanelled on Saturday, when they all responded.
Mr. Bradley, Jr., then rose and said : ** May it please your honor, before the
district attorney proceeds to open the case to the jury, I desire to present an
application to the court in behalf of the prisoner, in reference to the procuration
of his witnesses."
The paper was then read, as follows :
To the honorable the justice of the supreme court of the District of Columbia,
holding the criminal court for March term, 1867 :
The petition of John H. 8nrratt shows that he has now been put on his trial
in a capital case in this court ; that he has exhausted all his means, and such
farther means as have been furnished him by the liberality of his friends, in pre-
paring for his defence, and he is now unable to procure the attendance of his wit-
nesses. He therefore prays your honor for an order that process may issue to
snramon his witnesses, and to compel their attendance, at the cost of the govern-
ment of the United States, according to the statute in such case made and pro-
vided.
JOHN H. SURRATT.
Sworn to in open court, this 17th June, 1867.
Test : R. J. MEIGS, Clerk.
Mr. Bradley. We merely submit the motion now; your honor can determine
Qpon it in the progress of the cause.
The Court. Very well; your petition, however, I will remark, it seems to
me ought to indicate the witnesses that you desire, and where they reside. I
may be mistaken in that respect, however.
Mr. Bradley. If the application is granted, of course we will have the order
drawn up so as to conform to the requirements of the statute.
The Court. Grentlemen, are you now ready to proceed with the case ?
Mr. Bradley. We are, sir.
Mr. Carrington said the a8di:*tant district attorney would open the case.
Mr. Nathaniel Wilson, assistant district attorney, then addressed the jury
u follows :
May it please your honor and gentlemen of the jury, you are doubtless aware
that it is customary in criminal cases for the prosecution, at the beginning of a
trial, to inform the jury of the nature of the offence to be inquired into, and of
tbe proof that will be offered in support of the charges of the indictment. By
asking such a statement I hope to aid you in clearly ascertaining the work
ikat is before us, and in apprehending the relevancy and pigniiicance of the
testimony that will be produced as the case proceeds.
118 TRIAL OF JOHN H. SURRATT.
The grand jury of the District of Columbia have indicted the prisoner at the
bar, John H. Surratt, as one of the murderers of Abraham Lincoln. It has
become your duty to judge whether he be guilty or innocent of that charge — a
duty than which one more solemn or momentous never was committed to human
intelligence. You are to turn back the leayes of history to that red page on
which is recorded in letters of blood the awful incidents of that April night on
which the assassin's work was done on the body of the Chief Magistrate of the
American republic — a night on which for the first time in our existence a? n na-
tion a blow was struck with the fell purpose of destroying not only human life,
but the life of the nation, the life of liberty itself. Though more than two
years have passed by since then, you scarcely need witnesses to describe to
you the scene in Ford's theatre as it was visible in the last hour of the Presi-
dent's conscious life. It has been present to your thoughts a thousand times
since then. A vast audience were assembled, whose hearts were throbbing with
a new joy, born of victory and peace, and above them the object of their grati-
tude and reverence — ^he who had borne the nation's burdens through many and
disastrous years — sat tranquil and at rest at last, a victor indeed, but a victor in
whose generous heart triumph awakened no emotions save those of kindliness,
of forgiveness, and of charity. To him, in that hour of supreme tranquillity,
to him in the charmed circle of friendship and affection; there came the form of
sudden and terrible death.
Persons who were then present will tell you that at about twenty minutes
past ten o'clock that night, the night of the 14th of April, 1865, John Wilkes
Booth, armed with pistol and knife, passed rapidly from the front door
of the theatre, ascended to the dress circle, and entered the President's box. By
the discharge of a pistol he inflicted a death wound, then leaped upon the stage,
and passing rapidly across it, disappeared into the darkness of the night.
We shall prove to your entire satisfaction, by competent and cr^ible wit-
nesses, that at that time the prisoner at the bar was then present aiding and
abetting that murder, and that at twenty minutes past ten o'clock that night he
was in front of that theatre in company with Booth. You shall hear what he
then said and did. You shall know that his cool and calculating malice was
the director of the bullet that pierced the brain of the President and the knife
that fell upon the face of the venerable Secretary of State. You shall know
that the prisoner at the bar was the contriver of that villany, and that from the
presence of the prisoner, Booth, drunk with theatric passion and traitorous hate,
rushed directly to the execution of their mutual will.
We shall further prove to you that their companionship upon that occasion was
not an accidental nor an unexpected one, but that the butcnery that ensued was
the ripe result of a long premeditated plot, in which the prisoner was the chief
conspirator. It will be proved to you that he is a traitor to the government that
protected him ; a spy in the employ of the enemies of his country in the years
1864 and 1865 passed repeatedly from Richmond to Washington, from Wash-
ington to Canada, weaving the web of his nefarious scheme, plotting the over-
throw of this government, <the defeat of its armies, and the slaughter of bis coun-
trymen ; and as showing the venom of his intent— as showing a mind insensible
to every moral . obligation and fatally bent on mischief — we shall prove his
gleeful boasts that during these journeys he had shot down in cold blood weak
and unarmed Union soldiers fleeing from rebel prisons. It will be proved to you
that he made his home in this city the rendezvous for the tools and agents m
what he called his " bloody work," and that his hand provided and deposited ot
Surrattsville, in a convenient place, the very weapons obtained by Booth while
escaping, one of which fell or was wrenched from Booth's death-grip at the mo-
ment of his capture.
TRIAL OF JOHN H. 8URBATT. 119
While in Montreal, Canada, where he had gone from Richmond, on the 10th
of April, the Monday before the assassination, Surratt received a summons from
his co-conspirator. Booth, requiring his immediate presence in this city. In obe-
dience to that preconcerted signal he at once left Canada, and arrived here on the
13th. By numerous, I had almost said a multitude of witnesses, we shall make
the proof to be as clear as the noon-day sun, and as convincing as the axioms of
truth, that he was here during the day of that fatal Friday, as well as present at
the theatre at night, as I have before stated. We shall show him to you on
Pennsylvania avenue booted and spurred, awaiting the arrival of the fatal mo-
ment. We shall show him in conference with Herold in the evening ; we shall
ehow him purchasing a contrivance for disguise an hour or two before the murder.
When the last blow had been struck, when he had done his utmost to bring
Anarchy and desolation upon his native land, he turned his back upon the abomi-
Ddtion he had wrought, he turned his back upon his home and kinared, and com-
menced his shuddering flight.
We shall trace that flight, because in law flight is the criminaPs inarticulate
confession, and because it happened in this case as it always happens, and always
must happen, that in some moment of fear or of elation or of fancied security, he,
too, to others, confessed his guilty deeds. He fled to Canada. We will prove
to you the hour of his arrival there, and the route he took. He there found safe
ctncealment, and remained there several months, voluntarily absenting himself
from his mother. In the following September he again took flight. Still in dis-
guise, with painted face and painted hair and painted hand, he took ship to cross
the Atlantic. In mid-ocean he revealed himself and related his exploits, and
gpoke freely of his connection with Booth in the conspiracy relating to the Presi-
dent. He rejoiced in the death of the President ; he lifted his impious hand to
lieaven and expressed the wish that he might live to return to America and serve
Andrew Johnson as Abraham Lincoln had been served. He was hidden for a
time in England, and found there sympathy and hospitality ; but soon was made
again an outcast and a wanderer by his guilty secret. From England he went
to Rome, and hid himself in the ranks of the Papal army in the guise of a private
soldier. Having placed almost the diameter of the globe between himself and
the dead body of his victim, he might well fancy that pursuit was baffled ; but
by the happening of one of those events which we sometimes call accidents, but
which are indeed the mysterious means by which Omniscient and Omnipotent Jus-
tice reveals and punishes the doers of evil, he was discovered by an acquaintance
of his boyhood. When denial would not avail he admitted his identity, and
avowed his guilt in these memorable words : '* I have done the Yankees as much
harm as I could. We have killed Lincoln, the niggers^ friend^ The man to whom
Surratt made this statement did as it was bis high duty to do — he made known
bis discovery to the American minister. There is no treaty of extradition with
tbe Papal States ; but so heincftis is the crime with which Surratt is charged,
such bad notoriety had his name obtained, that his Holiness the Pope and Car-
dinal Antonelli ordered his arrest without waiting for a formal demand from the
American government. Having him arrested, he escaped from his guards by a
leap down a precipice — a leap impossible to any but one to whom conscience made
life valuelesa. He made his way to Naples, and then took passage in a steamer
that carried him across the Mediterranean sea to Alexandria, in Egypt. He was
pureaed, not by the " bloodhounds of the law" that seem to haunt the imagina-
tion of the prisoner's counsel, but by the very elements, by destruction itself,
njade a bond-slave in the service of justice. The iaexorable lightning thrilled
along the wires that stretch through the waste of waters that roll between the
^liores of Italy and the shores of Egypt, and spoke in his ear its word of terrible
^nimand, ana from Alexandria, aghast and manacled he was made to turn his face
120 TRIAL OF JOHN H. 8URRATT.
towards the land he had polluted hy the curse of murder. He is here at last to
be tried for his crime.
And when the facts which I have stated have been proved, as proved thejr
assuredly will be if anything is ever proved by human testimony ; and when all
the subterfuges of the defence have been disproved, as disproved they assuredly
will be, we, having done our duty in furnishing you with that proof of the pris-
oner's guilt, in the name of the civilization he has dishonorea, in the name of
the country he has betrayed and disgraced, in the name of the law he has vio-
lated and defied, shall demand of you that retribution, though tardily, shall yet
be surely done, upon the shedder of innocent and precious blood.
Mr. Bradley, sr., said the defence would reserve their opening remarks to the
jury.
EVIDENCE.
MoAUAY, June 17.
let at 10 a. m.
Iabnes, Surgeon General United States army, residence Wasb-
8 sworn and examined as follows :
District Attorn kv :
1 acquainted with Abraham Lincoln, late President of tbe United
1 called in your official capacity to visit bim about tbe 14th of
If so, state where it was, and what his condition was at tbe
led to visit bim on the night of the 14tb of April. I found
a the effect of a gunshot wound in the liead. I remained with
ed.
ere that was 1
^eterson's, on the west side of 1 0th street, opposite Ford's theatre.
tbe number of the bouse.
0 on and describe fully and accurately tbe character of the
lether, m your opinion, that wound caused his death.
entered the scull to the left of the middle line, and below the
\T. It ranged forward and upward toward the right eye, lodg-
If an inch of that organ. That wound was the cause of bis
ed until twenty minutes past seven on tbe morning of the 15th.
iscious at any time after receiving the wound,
u present when be died ?
J not in tbe theatre that night ?
i Mr. Peterson's, on 10th street, I understand you to say, where
1 to see him, in this city ?
ti present at the post mortem examination ?
upon the ])08t mortem examination you discovered any new fact
it important to state to the jury, or whether it simply confirmed
ef that the wound was the cause of his death ?
: mortem examination merely <;onfirmed my opinion of tbe night
tbe gunshot wound was the cause of his death,
re present at Mr. Peterson's house at tbe time you were first
e, Dr. Lieberman, Dr. Tafts, Dr. Ford, some members of the
►me officers of the army.
examine the bullet ?
mt not with the view of ever recognizing it again.'
give some general description of it ]
I can give a general description,
lot know that you would be able to identify the particular bullet
see it again ?
122 TRIAL OP JOHN H. SURRATT.
^, Can you express an opinion as to what sort of an instmmeht thia was in-
dicted with ?
A. I call it a gunshot wound, as we do all injuries inflicted by projectiles.
Q. Can you give us any opinion as to the character of the instrument, whether
it was large or small 1
A. I think it. was a wound from a pistol ball, at a very short range.
No cross-examination.
Jambs M. Wright, chief clerk Bureau of Military Justice, residence Wash-
ington, sworn and examined.
By the Distbict Attobnky :
Q. Will you examine the package on the desk before you, and state if the
articles contained therein were placed in your official custody ; and if so, bj
whom and when, and whether they have been in your official custody from the
time you received them until now ?
A. These articles belong to the government, and have been in my official
custody ever since the records of the conspiracy trial were sent to the office.
These are exhibits which were then given in evidence. They are all marked.
Here is a ball, and here is a part of the skull, (witness removing paper covena^
around the articles as he referred to them.) This is the pistol that came along
with the other articles.
By Mr. Bradley :
Q. Who put these things in your custody ?
A. Judge Holt. They came from the War Department, I believe, after the
decision of the commission was promulgated.
Q. Were the packages when you received them sealed up or open 1
A. They were all open just as they are now. They have various marks m
the back of them which I never read.
Joseph K. Barnes, re-called.
By the District Attorney :
Q. Will you examine these two exhibits (handing witness certain articles ci-
closed in paper covering) and state if you ever saw them before. If so,
and where, aud under what circumstances ?
A. I recognize in one of these papers a fragment of bone that was taken
of Mr. Lincoln's head on the morning of the 15th of April, by Dr. Woodwui |
in the presence of Dr. Stone and myself. This in the other paper (holding ii ;
his hand a small piece of lead) I recognize most positively as the ehred of led ^
that was found just inside of the wound, on the edge, and taken away bytt*
This (holding up a leaden ball) resembles most closely the ball. I could Mi* ^
described it so that you could have recognized it from its flattened curled edpli ;
That was found in the position I have described, behind the orbit of the i^
eye, and buried in the brain. ]
Q. Did you see the pistol there ? ]
A. I know the kind of pistol. I never saw this one here. That is thebiDt d
bowever, for a pistol of this size. j
Q. That ball resembles in appearance the one which you saw taken btfi^i
Mr. Lincoln's head ? j
A. Yes, sir. This is very much discolored. I made a cut upon this hdUl
because it is made of very much denser lead than is generally used in balls. I^^
18 made of brittannia rather than lead. .
Q. Do you see that cut now ? i
A. I do not recognize it, it is so much discolored. I made no private intf'^il
on the ball.
i
TRIAL OF JOHN H. SUBRATT. 123
Q. Suppose yon state now whether that is hardened lead or not. See if there
is any mark upon it ?
A. Not to my eye, I cannot detect any.
Q. Was there any mark put upon it at the time of the post mortem examina-
tion!
A. Not that I know of.
By Mr. Bradlby :
Q. Did I understand you to say yon cut this ball ?
A. I merely touched it with my knife. It has become black since then.
Q. Tou did not make any incision ?
A. No, sir.
By Mr. Wilson :
Q. Who made the post mortem examination ?
A. Dr Woodward of the army, my assistant, made it by my orders.
Q. You were present ?
A. Tes, sir ; and Dr. Stone was present also.
; William F. Kent, residence Eighth street east, near D, Washington, sworn
='ni examined.
By the District Attornev :
Q. Were you at Ford's theatre in this city on the night of the 14th of April,
1865?
A. I was.
Q. Examine this pistol and state whether you ever saw it before, or one aim-
ikrtoit?
A. I think it is the same pistol I picked up in the box the President occu-
^ during the night of the 14th of April. I was present during the play ;
beard the shot ; saw the man jump out of the President's box ; and I ran round
ftom the parqnetto to the entrance of the President's box, which I entered.
When I entered it there were two men present, who were in the act of lifting the
President out of his chair and placing him on the floor. Some one helped a
lorgeon up from the stage, and he asked if any one present had a penknife. I
hnided him mine, and with that he cut the President's clothes open, examined
tte body, and turned him over to see where the wound was. Not discovering
•nj on his body, he run his hand round his head, and then said, ** Here is the
imnd ;" " here is where he is shot," or words to that effect. After they had
OBiied him out of the theatre, I went out also. As I was about to go into my
koudmg-house — ^I was then boarding on E street, near the theatre — I missed
SJ keys. Thinking that in pulling out my penknife I might have pulled out
w keys with it, and dropped them in the box, I turned and went back to the
tteatie, and entered the box again. It was then pretty dark, they having turned
down all the gas, and I could not see. In moving round in the box, I knocked
nv foot against something hard on the floor. I stooped down and picked up
what nroved to be this pistol. It was lying close to the outside of the box. I
imiBealately held it up, and exclaimed, " I have found the pistol." Some per-
son present told me to give it to the police. I did not see any there. Just then
a man who represented himself as Mr. G-obright, agent of the associated press,
came np, and being vouched for by several persons, I gave the pistol to him.
The next morning I identified the pistol at the police station. This is appar-
ently the same pistol, as far as I can jndge from the appearance of it. It was
about the length of this one.
No cross-examination.
124 TRIAL OF JOHN H. 8URRATT.
Henry R Rathbone, brevet lieutenant colonel in the regular army, and
assistant adjutant general of volunteers, residence Albany, New York, sworn and
examined.
By the District Attorney :
Q. Did you know the late Abraham Lincoln, President of the United States ?
If so, state whether you saw him on the evening of the 14th of April, 1865,
where you saw him that evening, and all that occurred from that time until he
received his death wound.
A. I was well acquainted with the late President Lincoln, and was present
with him on the night of the assassination.
Q. State all that then occurred.
A. On the evening of the 14th of April, at about twenty minutes past eight,
I, in company with Miss Harris, left my residence at the comer of Fifteenth and
H streets, joined the President and Mrs. Lincoln, and went with them in their
caiTiage to Ford's theatre, on Tenth street. When we reached the theatre and
the presence of the President became known, the actors stopped playing, the
band struck up " Hail to the Chief," and the audience rose and received them
with vociferous cheering. The party proceeded along in the rear of the drew
circle to the box which had been set apart for their reception. On entering the
box there was a large arm-chair placed nearest the audience, and furthest from
the stage, which the President took and occupied during the whole of the eve-
ning with one exception, when he rose and put on his coat. He immediately
after, however, resumed his former position. When the second scene of the third
act was being performed, and while I was intently observing the performance on
the stage, I heard the report of a pistol from behind me, and on looking roond
saw dimly through the smoke the form of a man between the President and the
door. I heard him shriek out some such word as " Freedom." He uttered it
in such an excited tone that it was difficult for me to understand what he said.
I immediately sprung towards him and seized him. He wrested himself firom
my grasp, and at the same time made a violent thrust at me with a large kaifo^
I panied the blow by striking it up, and received it on my lefl arm, betweoi
the elbow and shoulder, and received a deep wound. The man sprung towardi
the front of the box. I rushed after him, but only succeeded in catching Ik
clothes as he was leaping over the railing of the box. I think I succeeded in
tearing his clothing as he was going over. I instantly cried out, " Stop thlt
man." I then looked towards the President. His position had not chaogel
except that his head was slightly bowed forward and his eyes were chwoi
Seeing that he was insensible, and believing him to be mortally woaiided«I
rushed to the door for the purpose of getting medical aid. I found the door
barred with a piece of wood, a heavy piece of plank, which was resting agtM
the wall and against the centre of the door, abont four feet from the floor. Th
people on the outside were beating against it. With some difficulty I remofri ;
the bar, and those who were there came in. When I returned into the boil
found that they were examining the person of the President, but had not Jtt
found the wound. When it had been discovered it was determined to remofi
him from the theatre, and I with some assistants went with Mrs. Lincoln totki
house on Tenth street opposite the theatre.
Q. Will you state your relative positions ? lu the first place, who were i» *
the box occupied by the President besides yourself?
A . President Lincoln. Mrs. Lincoln, and Miss Harris. President Lincoln vtl
sitting at that part of the box furthest from the stage and nearest the audieaek
Mrs. Lincoln was sitting nearest to him.
Q. Toward the front of the box ?
A. Yes, sir ; some two feet distant, probably. Miss Harris was next to hefi
and I a little in the rear.
TRIAL OF JOHN H. SUBRATT 125
Q. Did yon get a good look at the man wbo fired the pistol ?
A. I did not ; I only saw him dimly through the smoke.
Q. You would not be able to identify him ?
A. No, sir.
By Mr. Pibrbbpont :
Q. Did you examine this plank that you apeak of ]
A. Not carefully.
Q. Did you observe to see how it was fixed ?
A. I merely know that it barred the door and rested against the wall, and
against the centre of the door, and that I removed it with difficulty, so securely
was it fixed.
Q. Do you know whether there was any niche in the wall ?
A. I did not notice.
Q. Nor how it was fastened against the door ?
A. No, sir.
The court here took a recess for half an hour.
AFTBBNOON SESSION.
JoSBPH B. Stewart, residence Westchester county, New York, sworn and
«umined.
By the District Attorney :
Q. You have resided in Washington city ?
A. I resided in Washington city for a time.
Q. And practiced at this bar ?
A. And practiced at this bar in this court ; yes, sir.
Q. State to the jury whether you were at Ford's theatre, in this city, ou the
Qfht of the 14th of April, 1865. If so, state your position at the time, and
everything that occurred there under your observation, connected with the as-
MHination of the late President of the United States.
A. I was at Ford's theatre on the night of the 14th of April. I went in
cottpany with my sister, or sister-in-law, and two other ladies. I occupied four
•etts directly iu front of the orchestra. To illustrate what I want to say : the
tkatre is divided by two aisles one on the left and one on the right. I was
Med in the left-hand comer chair (looking towards the stage) on the right-
bud aisle. The four seats I had taken would commence with the comer ; I
Mcapying the comer seat, and the three on my left. I was just in a position
vbere I could see everything on the stage, and off at an angle could see the
PMdent and the company who were with him. A young lady sat next him,
iad then a gentleman who I knew to be Major Rathbone. I believe Mrs.
lineoln sat next. They were in a second-tier box, and just in a position where
I eonld see from the breast up, of the President, and the upper portion of the
kttut and fieice of the other persons in the box. I frequently noticed the box
inia^ the performance, and more than once had occasion to remark on the
fVMence of the President, and his appearance. At the moment of tne oc-
cvrence I am about to state, there was a pause, a sort of interlude, when, while
Bot looking straight at the box, I saw a flash and heard the report of a pistol or
C, a clear report like that of a shotted gun. Any one at all accustomed to
r the report of a gun can tell the difference. I, at the moment, was speak-
in|[ to my sister, and on raising my head, and directing my attention to the
box, I saw, at the same instant, a man coming over the balustrade, and noticed
the curl of smoke right immediately above him. as he was in a crouching posi-
tf0o,in the act of leaping out of the box. It was slowly sailing out from the hox.
As he cleared the box I heard him exclaim, '* Sic semper tyrannis'' That ex-
damatioQ had escaped his lips before he reached the stage below. This person
126 TRIAL OF JOHN H. SURBATT.
came down to the sta ge with his back to the audience, cronched as he fell, and
came down upon his knees with a considerable jar, but rose instantly with his
face turned full upon the audience. I noticed at the same instant that he held
a very la^-ge knife in his hand. At the moment he rose, and by the time he
was fully up, with his face to the audience, my attention was fixed right on him.
I rose up, stepped forward on the balustrade of the orchestra, but it seemed to
project over with a sort of cushion or something, and my foot slipped. I step-
ped into the chair I occupied and jumped over on to the stage, keeping my eyes
distinctly on the movements of this man, who I thought I recognized when I
looked into his face. As I made my second step I threw my eye back to the
box, and could see the other persons, but could no longer see the President
He had disappeared from my view. When I reached the stage this man crossed
rapidly, not in a full run, but in a quick springing walk, over to the left-hand
side of the stage. I saw him disappear in the passage leading to the rear of
the building. I crossed the stage in less time then he did, considerably. I ran
across the stage with all my might I said to persons on the stage, " Stop that
man ; he has shot the President." When I turned around towards the back
building, and had gone perhaps a second or third step, I heard the door slam at
the end of the passage. As many as five persons, ladies and gentlemen, whom
I would suppose, from their appearance and action, belonged to the stage, came
into the passage. They were in a great state of excitement, and somewhat ob-
structed my movements, particularly one lady, who seemed to be wild with ex-
citement. Near the door, as I approached it, I noticed a man standing.
Q. Near the back door ?
A. Yes, near the door, which evidently had slammed, and through which I
passed out. When I first observed him, his face was turned towards the door.
He gradually turned towards me, but in a very quiet manner ; did not show
any of that measure of 'excitement and agitation which characterized everybody
else I saw. I exclaimed again, and heard somebody say, ** He is getting on a
horse." By this time I was at the door. All this occurred in less time than I
am telling it. When I reached the door, which was in an instant, I first took
hold of the hinge side, then changed to the other side, and opened it. I heard
the tramping of the feet of a horse outside. I passed within a half arm's lengA
of this person, who was standing in the position I have mentioned, and who
turned his face toward me. As I opened the door a person was right at it, anl
as I passed out, directly under my arm, or, I might say I passed my arm di-
rectly over the head of that person. The action of that person was much likr
one taken by surprise. He seemed to crouch away. He either might hav6
passed in to the door behind me or at the side door. He seemed to give way
as I passed. My attention was hot directed to his action more than to obserre
that that person was there. My attention was fixed upon the movements of
the man mounting his horse. He was imperfectly mounted ; was in the saddle,
but leaning over to the left. The horse was moving with a sort of jerking,
agitated gait, as a horse would do if spurred or touched at the instant of mount-
ing, describing a sort of semicircle from right to left, &8 I have had a horse do»
with an uneven rein drawing him a little to one side. I never had been in the
alley before. I did not know even that there was an alley there, and was dis-
appointed to find it there. I approached immediately, with the intention rf
taking the rein. , The horse was heading round, in the direction that wodd
bring his head directly towards some houses there. I ran as fast as I possiUy
could, aiming to get at the reins of the horse. I got up near the flank of the
horse and nearly within reaching distance of the man — a stride further, and I
might have got hold of the bridle. With an oath he brought his horse ronnd
so quick that his quarter came against my arm, so that I gave way towards 4«
buildings. He then turned and came round pretty much the same way towards
•ight hand side of the alley. I followed him at the right flank of his hone
TRIAL OF JOHN H. SURRATT 127
as I bad done before until near tbe opposite side of the allcj, when he h^^ded
bim round, and, crossing tbe alley, I noticed that be leaned forward, holding
firm his knife. Looking upward I could see every movement ; when looking
down I could see only indistinctly. When near tbe further side of the alley be
brooght tbe horse up and beaded him off. At the moment the horse made the
first turn from these buildings over on to the other side, I demanded of the per-
son to stop. I bad no doubt in my mind at all who I was speaking to. I be-
lieved I was speaking to John Wilkes Booth. At that instant some person ran
rapidly out of tbe alley, and, after bearing a few taps of the foot going out of
the alley, I beard two clicks or something that echoed, and directly a shrill
whistle was beard over towards F street. That occurred while the horse was
erosBiDg from tbe left over to tbe right baud side of the alley, before he got bim
directly ahead. As soon as be got the horse headed he did not seem to get him
completely under control of the rein until be came to the turn. I was then so
netf the flank of tbe horse that if he had taken another step in that direction I
eoald have put my hands on bim. He then crouched over tbe pommel of the
saddle, and rode furiously out of the alley. I was so close to the horse at the
time of tbe first two or three strides that he sent mud and du:t into my face and
boeom. I still ran after the horse some steps ; why I did it I do not know. It
vaa a sort of feeling of desperation. I entertained no doubt in my mind on the
Btage, on seeing the person, of being able to lay bands on bim in the house or
out of it. I beard the horse's feet as he rode out of the alley distinctly, and
heard them again in what I would take to be over F street. At all events,
there was a quick sound like that of a horse crossing a plank. The direction
was towards the Patent Office.
By Mr. Pibrrbpont :
Q. Who was tbe man you saw come on to the stage and cross over 1
A. That man was John Wilkes Booth.
Q. Yon have spoken of an alley through which the horse went ; please state
whether tbe diagram banded you is correct.
A. It is.
(The witness here explained to the jury, from tbe diagram handed him, the
^tterent positions in tbe alley, and also from another diagram the different po-
ntions referred to on the stage.)
By Mr. Bradley :
Q. You were on tbe opposite side of tbe stage, as I understand, from that on
which Booth jumped]
A. Yes; I was on the right-hand aisle, I should judge about twenty feet
fr^ the extreme right-hand side of the stage.
John B. Pbttit sworn and examined.
By the Assistant District Attornky :
Q. State to tbe jury where you resided in April, 1865.
A. On the 14th of April, 1865, I occupied a room in the dwelling-house No.
^ P street, below Tenth. I ate elsewhere. I was in the rear part of the
holding. There was a back building to the house, which was occupied by Mrs.
liodsay.
ft. Describe the position and relation of your room to the back part of Ford's
Aeatie.
A. I was in there that night or evening, and was not out till the next mom-
% The rear part of that building which I occupied was, I suppose, one hun-
JW and fifty or two hundred feet from the rear part of Ford's theatre. I was
^ my room reading by gas-light.
Q. Describe^ if you please, any sounds that you heard between the hours of
^t and eleven o'clock.
128 TRIAL OF JOHN H. SUKRATT.
A. Adjoining Mrs. Lind<»ay'8 house there was an eating saloon, kept by a
Mr. Gilbert. The r«ar of it, with the exception of a small tenement, was ad-
joining the theatre lot. Immediately west of that lot was a vacant lot, which
appeared to be a part of the same, and, I believe, was not separated from it by
any fence. I was sitting with my back to that vacant ground. My attention
was directed to several low whistlings, as though they were signals. I do not
know how often they were repeated, but sufficiently often to attract my atten*
tion, in connection with some other noises which I heard.
Q. State where they appeared to come from.
A. The signals or whistlings appeared to come from this vacant ground. I
stopped reading once or twice, and my attention was so much attracted to it that
I got up to see if I could see any person, or what there was going on. It stmck
me there was some mischief going on — boys, or something of the kind. My
attention was attracted to that in connection with the noise of a horse — as I sap*
posed, it was inmiediately in the rear of me — which appeared to be very aneasy,
changing his position on the paving stones back in the alley leading to the the-
atre from the east. I saw nothing, and knew nothing until the next morning of
what had transpired that night.
Q. State whether or not you heard the sound of a horse rapidly retreating.
A. Yes, I did ; some time after, a very short time. They appeared to be
pretty much together — say within a quarter of an hour. All thi» passed, I should
judge, in fifteen or twenty minutes or lees. One of the whistlings, the last,
was a very loud whistle.
Q. From what direction did the sound come 1
A. The horse was very unejisy, and directly after this uneasiness had taken
place the horse appeared to run down the alley. 1 could hear his hoofs very
plain ; as plain almost as if I had been in the alley, if it was in the alley. I db
not know whether it was or not.
Q. This was about the time you heard the shrillest whistle ?
A. It was after. There is an alley from the theatre running eastward;
whether it was in that alley or not I cannot say ; I saw nothing.
Q. Do you know at what time of the night that was ?
A. Not accurately ; it was pretty late. It was during the progress of the
play. I could hear the voices of the actors. I frequently heard the voices of
the actors from the room where I sat. During this time I heard the explosion
of a gun or pistol, and I could hear voices. I do not know from what direcfion.
Q. I understand you that by the side of Gilbert's eating saloon, and back of
it, the lots were vacant ?
A. Yes, sir ; there was an alley of some three or four feet between Gilbert'i
eating saloon and the dwelling where 1 resided. Immediately in the rear of
Gilbert's saloon there was a vacant space of twenty, thirty, or forty feet, between
that and the tenement-house occupied by a man of the name of Raidy. Ad-
joining that was a vacant space running to the theatre line, on F street, and to
a tenement of a man by the name of Birch.
Q. So that there was free communication to F street ?
A. I think there was no fence between these vacant lots and the theatre Iot>
because I know these Raidy 's came back of the theatre to get water for washing'
Q. Do I understand you to say that immediately west of Gilbert's eating
saloon there was a vacant lot ?
A. Yes ; my recollection is that there was no well-defined line between that
and the vacant lot running from the theatre to the line of F street ; but if 1 1^
collect right there was a board fence along on the street.
Gross-examined by Mr. Bradley:
Q. You say there was a fence on F street, across the vacant lot west of Gil-
bert's saloon ; I understand you that there was no fence on the line of the all^
inside t
TRIAL OP JOHN H. 8URRATT. 129
A. No, there was none.
Q. Let me understand exactly this locality. You had rooms at Mrs*. Liod-
My'e. West of you, with an alley three or four feet between, was Gilbert's
eating saloon ?
A. Yes; and west of that was the tenement of a man by the name of Birch.
Q. And between the eating saloon and Birch's house there was a three or
four foot alley ?
A. No, there was a vacant lot of perhaps twenty feet between the saloon and
Birch's house.
Q. Who lived next east of Mrs. Lindsay's ?
A. Mrs. Shinn, 341.
Q. Is there not an alley just beyond that?
A. No, sir ; there is a frame building belonging to Mrs. Barry. Then there
is a carpenter's shop between Mrs. Moore's house and the house of Mrs. Barry,
md then Moore's house is on the comer of the alley. h
Q. Is not the carpenter's shop on the alley ?
A. No, sir ; Moore's house is on the alley.
Q. Is not the aUey west of Moore's house ?
A. No, sir ; east.
Q. I understand you then that your recollection is that there was no fence
nmamg on the west and north sides of the theatre alley, but that there were
Tacant lots running d»wn to that alley ?
A. My recollection is that there was no fence between the theatre lot and this
tacant lot, and the lot occupied by Gilbert's eating saloon adjoined the vacant lot.
Q. You did not hear the testimony of Colonel Stewart ?
A. No, I did not. I do not pretend to be accurate about the fence. My
nom fronted this vacant place, and I was there for several months, but I do
not recollect about it.
Jambs P. Fbrguson, a resident of Washington, sworn and examined.
By the Assistant District Attorney :
Q. State whether you were at Ford's theatre on the night of April 14, 1865,
•ad state distinctly and as briefly as you can what you observed there about ten
o'clock, or at the time of the assassination of the President.
A. On the 14th of April I was keeping a restaurant right adjoining Ford's
fcatre. HaiTy Ford came into my house in the afternoon and told me if I
Wanted to see General Grant I had better go into the theatre and secure a seat,
a»he was to be there that night — ^he and the President. Hany Ford was the
treasurer of the theatre. He came into my house along about four o'clock in
tke afternoon and told me this. I went in and secured two seats. There was
a lady who was going with me. I secured two seats in the dress circle right
•djoining the private boxes, on the opposite side from the one in which the
n«8ident was in at night. That night about half past seven I took this lady
to the theatre and occupied these two seats in the dress circle. The President
c^ioe in along about a quarter past eight, accompanied with some other gentleman
*lom I understood to be Major Rathbone, and two ladies, one of whom was
fe. Lincoln; the other I did not know. They took their seats in the box, and
the play went on until between fifteen minutes and half past ten, in the second
■ct and the second scene of the American Cousin. I saw Wilkes Booth come
^nd the dress circle down to the door at the entrance to the passage to the
G^ate boxes. He stood there and looked all around well. A few minutes
ore that General Burnside came in and took a seat in the orchestra. Booth
*H)ked about the dress circle, then into the orchestra, then stooped down and
Fuhed open the door to the passage leading to the private boxes from the dress
•We, Inhere are two boxes there, but when the President occupied one the
Petition was taken away and the two thrown into one. He passed into the
130 TRIAL OF JOHN H. SURRATT.
little ball leading to die boxes wbere the President sat, and I did not see him
for. I suppose, ten or fifteen seconds. I was looking right at the box, for I was
very anxious to see whom he was acquainted with. I understood that thiB other
lady was a Miss Harris. I wanted to see whether he was acquainted with this
lady or with the President. I then heard the report of a pistol. I saw him go
past the President's head and come right over the front of the box, swinging
around, keeping his hand on the box and letting himself down. As he came
down he struck on his right knee, but jumped to his feet again. He had a knife
in his hand. He ran across the stage with his knife in his hand.
Q. Where did he disappear?
A. He passed out at the small passage where the actors come in. There is
a passage on each side of the stage.
Q. Had vDu seen him before on that day I
A. I forgot that. I saw him. I think, about one o*clock. 1 went to my door
light Adjoining Ford's theatre on the upper or north side, and saw him on a
linle horse out on the street talking with a man by the name of Haddoz. Booth
said. "Is not this a nice horse I have got ? It can run like a cat." Just then
I started to come ouu when he struck his spur into him to show how he could
run. and wont down on Tenth street. It was the last I saw of hmi until I saw
him go into the box that night.
Q. What part of the play was i: when you saw Booth come into the box ?
A. I don't know what part. It was the second scen^yf the second act, I
think, of the Ameiican Cousin. What part of ii I do not remember now. It is
5omethin£r I am not very well posted in.
f^. Did he say anything mox^e a: the lime yMU saw him in the afternoon in
regard to his hor!« !
A. Thai i« all he said. I had p>; a1m>s: ou: to him to the curb-stone, when
he started off.
Q. He did iK^t say anything as to how long he had the horse I
Mr. BsADLfiV. We are no: trying Bcwdi.
The Ascsis^TAXT District aVtorxey, I am aware of that.
Mr. Bkaplbv. Then I objec: lo that question.
The A>5SiSTANT District Attorxev. Very well, lex it go. Give the fall
name of Mr. Maddox.
A, Jajaes Maddox. I do n "»: ku«:.w hSf o:b>er name. He was employed •-'t
the thra::^.
CT»*s-rxain:i;t~.i by Mr, Bradlfv :
l^«. Did yvva s«- aayK>dy e'sr oa :hr s:a5>r t^esiaes Bx«:h a: the time ?
A. Hcniy Hawk was ou :ir supe, I :b:::k.
l^. He WAS an dic:or 5
A. Ye:s, sir,
Q. Who gv^i on ;Lt s:ju^ r.cx: Ai'itr b:ia ?
A, 1 d^sclar>e I «i:nnv"; rt aly :«-!!. 1 :h::ik :: was Mr. Siewart.
Q. Was Kv^th on the ^:Ai^ :hi-::. or Liii b- r>: v"a ?
A. 1 :h:«k be bAi ^ : o^, as iat as 1 «n n>N<]ec:. Thei>e was no person o*^
iW siapf wbei2 lVv:h wi> on ::. I >a«* HAwk o=i :br s:age about the moment
Booth had h^*s kv*i:V, bus 1 :tv.;k ht^ m-A> :!:; .N^Iy r-is* :in::I BiXkth had passed
detur ihiv>Q|rb atui out.
Q. Whw w*s your j^ca: ■
A, I w«# TyA« adjx^nini: tV.e iNsir^:?' ':;\, -r. :l'v dr?ss circle. The President
w«* «lin>cily oppiv::^ wbcjv I fji:.
Qh Th^n if a Uip^ xaa^^ had p*^: . u :>,; s:/.^ wh:> B>::b was on it yon woul»
Imw^ iKW him }
Ah I c^Mdil Kav^ j»<vit h^«w w^l! i v:.^u4:>.
■^ A»4 yon ji^ ii^x^ ij^v a»y **^oh ;^?c "
NM \%» tbo s:a^ vbP.t^ B>- ;>j wx$ :irf-Y I ;!i::ik no one got on
TRIAL OP JOHN H. SURRATT. 131
ke stage until Booth was off. The instant he was off Laura Keene was on the
lage. In fact there were a half a dozen there in a moment.
Q. He ran directly across the stage and disappeared ?
A. Yes, sir ; he came down out of that box and ran out across the stage.
Q. Hawk ran off ahead of him 1
A. Yes, sir; the very moment he got on the stage Hawk ran off, and then
:ere was nobody on the stage.
Q. Who came on after Stewart ?
A. Two or three soldiers, I think ; I do not know where they came from.
Q. And you did not see any one close enough behind Booth almost to touch
m as he was coming out ?
A. No, sir ; I did not.
By the District Attorney ;
Q. But yon say there were a good many persons on the stage about that
nel
A. Yes ; the moment after he pased out.
Q. Did you not see some persons advance towards the stage infimediately
ipon his falling on it ?
A. Yes, sir ; a good many jumped on the stage.
Q. You do not know Colonel Stewart ]
A Yes, sir; he is a large man. I saw him on the stage, but I do not recollect
hifl getting on the stage until after Booth was off.
By Mr. Bradlby :
Q. Yon saw Booth go off the stage ?
A. Yes, sir ; I saw Booth go off the stage before I saw any person on it.
J08BPH M. Dye, sworn and examined.
By Mr. Pierrepont :
Q. State your age and occupation.
A Twenty-three next August ; I belong to the United States army, and am
• recruiting sergeant in Philadelphia.
Q- In the regular army ?
A. Yes, sir.
Q- Where are you now stationed ?
A. I am stationed in Philadelphia.
Q- How long have you been stationed in Philadelphia, or about how long ?
A. A little over a year.
Q Where did you go to Philadelphia from?
A. From New York.
Q« From what place did you go to New York ?
A. From my home.
Q- Where is that?
A. Washington county, Pennsylvania.
Q- Were you in the army in April, 1865?
A. I Was.
V Where was your regiment stationed on the 14th of April, 1865?
A. I belonged to battery C, independent Pennsylvania artillery, stationed at
^^p Barry.
X' Tell me where Camp Barry was.
^ It was at the junction of H street and the Baltimore turnpike.
%' Give as a description of what direction it was from Ford's theatre.
^ It ia out H street.
H' The same way as the Capitol, except north of the Capitol ?
J'Vsir.
V flow far was your camp from Ford';j theatre ?
132 TRIAL OP JOHN H. 8URRATT.
A. Iprceume nearly two miles.
Q. Were you in Washington on the night of the murder ?
A. I was.
Q. Was there any officer with you ?
A. Yes, sir ; Sergeant Robert Cooper.
Q. Is Sergeant Robert Cooper hero in town ?
A, Yes, sir. *
Q. .You have seen him lately ?
A. Yes, sir.
Q. Have you seen him to-day ?
A. Yes, sir.
Q. Where were you on the evening of the 14th, at the time of the murder ?
A. I was in an oyster saloon.
Q. Will you state when you went into the oyster saloon, and from what place
you went ?
A. From Ford's theatre.
Q. At what time in that evening did you come to Ford's theatre ?
A. I arrived there about half past nine o'clock.
Q. Who was with you ?
A. Sergeant Cooper.
Q. Had you any pass — were you allowed to come there ?
A. I had a monthly pass, but I think it was then out of date.
Q. Were you at the tneatre ?
A. I was in front of the theatre.
Q. Were you sitting or standing most of the time ?
A. Sitting.
Q. What were you sitting upon ?
A. Upon some plank, or something of the kind, placed there, in order to alle-
viate persons getting in and out of carriages.
Q. Did you sec Mr. Lincoln's carriage there ?
A. I did, sir.
Q. What was the condition of the street in front of the theatre that night as
to its being light ?
A. It was light directly in front of the door.
Q. In what way ?
A. There was a large lamp there.
Q. A gas lamp ?
A. I cannot swear as to its being gas or oil.
Q. State whether it was light or not.
A. It was light.
Q. Do you remember what the temperature of that evening was, whether it
was cold or mild ?
A. It was mild.
Q. As you sat there upon this plank, what was Sergeant Cooper doing I
A. Sergeant Cooper was moving up and down upon the pavement.
Q. Did you have any conversation with him while you remained there ?
A. Yes, sir.
Q. While you were sitting there, state whether there was any change in tW
inside of the theatre as to pe^pons coming out at the end of any act ?
A. They did.
Q. State what that was, and when.
A, Parties came down — I presume it was about ten or fifteen minutes aft^
we got there — and went into the saloon below and the saloon adjoinmg ^
theatre to drink.
Q. Were there quite a number of them ?
A. Yes, sir.
TRIAL OF JOHN H. 8UEBATT. 133
Q. As these people came down from the theatre at the time you mentioD,
whom did you see, and what did you hear said in relation to Mr. Lincoln's car-
riage ?
A. Before they came down I beard conversation there.
Mr. Bbadley. We object to that conversation.
Mr. PiERRKPONT. Before you answer thiit question I will ask you another.
State whether you know John Wilkes Booth.
A. I do, sir.
Q. State whether John Wilkes Booth was one of the persons who entered into
that conversation.
A. He was.
Q. Now state what it was.
Mr. Mkrrick. We object to the question. I will state our objection, unless it
ia the proper order for the gentleman on the other side to state the grounds on
which they offer the declarations of Booth.
The Court. You may state the ground of your objection.
Mr. Mbrrick. The ground of our objection is that they propose now to offer the
declarations of Booth for the purpose of effecting the prisoner at the bar. They
bave established no connection hetween Booth and the prisoner as yet. I state
this objection, not for the purpose of arguing it, but in order that counsel may
piwent the grounds upon which they make the offer.
Mr.PiuRRBPONT. I present no grounds. It must be apparent, without any
Mrt of argument, that what John Wilkes Booth did in connection with this mur-
der is evidence.
Mr. Bradley. We supposed that possibly might be the ground of the gentle-
iiian*8 offer. I take it for granted that whatever John Wilkes Booth may have
■lid or done, unless they connect the prisoner at the bar with John Wilkes
Booth in that transaction, is of no sort of consequence. I suppose, if the prosecu-
tion are to proceed upon the ground of conspiracy, they must first establish some
connection between the two parties ; when that is done, how far the evidence may
beadmissible is another question. But until that is done, although Booth may
We killed the President, and fifty other people have been connected with him —
^>Qt)lthey show that this party was so connected, his declarations cannot possibly
fcc evidence.
Mr. FiERRBPOXT. We state to the court that we shall connect the prisoner with
it
Mr. Bradlbv. That is an entirely different question. That has never been
•tated before.
Mr.PiBRREPONT. We say it now.
^ The Court. Of course, if the counsel for the prosecution fail to make connec-
2»i of Booth with the prisoner at the bar, what ever Booth said or whatever he
m, although he may have committed the murder charged against the prisoner,
'OS declarations could not he testimony against the prisoner.
Kr. Bradlbv. As the gentlemen now put it upon the ground that they ex-
P^ to connect the prisoner with Booth, it is entirely within the discretion of
^ court to say whether they will permit testimony to be given until some
^parent connection is established. This is an enormous case, and I ask the
?*it whether they are to be allowed to continue the trial of all the parties named
^the indictment, through this immense mass of testimony, before they offer any
^^Winection of the prisoner at the bar with the transaction, or will your honor
f^ertised beforehand require them to bring forward their evidence connecting
■ittwithit.
The Court. The usual course of proceeding in such case is to tell the counsel
*•* they must use their discretion as to what part of the case they will present
^ particular evidence in. I always advertise counsel, however, that unless they
134 TRIAL OP JOHN H. SUBBATT.
connect the defendant with the transaction, the testimony will all be thrown
out.
Mr. PiERREPONT. Of course ; but I will say, that if the counsel had notinter-
rupted us, we would have connected the prisoner with the transaction, long before
this.
Mr. Bradley. All I can say is that I interrupted you at the proper time.
The Court. The court will exercise its jurisaiction in this and every other
case, as far as possible, to elicit the truth of the whole matter. If the prisioner at
the bar is not connected with the transaction, the testimony will be ruled oat.
By Mr. Pibrrbpont :
Proceed now and state what you saw done, and what you heard said, by John
Wilkes Booth, and with whom he was conversing.
A. The first who appeared on the scene was John Wilkes Booth himself.
What first attracted my attention was his conversing with a low, villanons
looking person at the end of the passage.
Q. You mean by low, short in stature ?
A. Yes, sir ; it was but a moment before another person joined them. This
person was neat in appearance — neatly dressed — and entered in conversation.
This rush came down from the dieatre, and as they were coming. Booth
said to this other person that he would come out now, as I supposed, referr-
ing to the President. They were then standing facing the place where the
President would have to pass in order to reach his carriage, and watching
eagerly for his appearance. He did not come. They then hurriedly had a
conversation together ; then one of them went out and examined the carriage* and
Booth stepped into a restaurant. At this time all the party who had come down
from the theatre had gone up. Booth remained there long enough to take a drink.
I could not say whether he did or not. He came around and stood in the end
of the passage from the street to the stage where the actors passed in. He ap-
peared ill a moment again. This third party, neatly dressed, immediately
stepped up in front of the theatre and called the time.
Q. To have no misunderstanding, state what you mean by calling the time.
A. He stepped up and looked at the clock, and called the time to the otber
two.
Q. That is he stated what it was ?
A. Yes, sir.
Q. Where was the clock ?
A. The clock was in the vestibule of the theatre.
Q. State how the light was at the time relating to the face of the neatly dressed
man who called the time.
A. I did not observe it particularly at that time. As soon as he called the
time to the other two, he went up the street towards H street. He did not
remain there long, but came down again, stopped in front of the theatre, looked
at the clock, and called the time again, looking directly at these two, and seemei
excited.
Q. That is, Booth and the other man ?
A. Yes, sii. He then immediately turned his heel and went towards H street
It was then I thought something was wrong by the manner in which these three
had been conducting themselves, and as a soldier I had a revolver in my pocket
with my handkerchief wrapped around it.
Q. What part of it?
A. Around the revolver. We wore artillery jackets, and the revolver waei"
my breast pocket. My suspicions were so aroused that I unwound my handker
chief from around my revolver. It was not long before he appeared affi^
going on a fast walk from the direction of H street.
Q. How did he look then 1
TRIAL OF JOHN H. SURBATT. 135
A. He placed himself in front of the theatre, where the light shone clear on
his face. There was a picture on that countenance of great excitement, ezceed-
inglj nervous and very pale. He told them for the third time that it was ten
minntefl past ten o'clock. That is the last time he called it. It was ten min-
utes past ten o'clock.
By Mr. Bradley :
Q. And that was this time ?
A. Tes, sir.
By Mr. PiERRBPONT:
Q. Did you say that the person said three times that it was ten minutes past
ten o'clock ?
A I said he called the time three times, and this time it w§s ten minutes past
ten o'clock.
Q. And the other periods of time were hefore ?
A. Yes sir.
By a Juror :
Q. He did not state each time that it was ten minutes past ten ?
A. No, sir. There were eight or nine, or ten minutes between them. The
last time I do not think there were more than five.
By Mr. Pibrrbpont :
Q. Did you see that man distinctly ?
A. I did.
Q. Very distinctly ?
A. I did very distinctly.
Q. Do you see him now ?
A. I do.
Q. Can you tell ua where he is 1
A. I can.
Q. Tell us where he is.
A. He sits there, (pointing to the prisoner.)
Q. Is that the man ?
A. It is. I have seen his face often since, while I have been sleeping — it
was so exceedingly pale. He hurried up towards H street again, and that is
tbe last I have seen of him until lately.
Q. You say he was the prisoner at the bar ?
A. Yes, sir, and I say that I have seen him since, while I have been sleeping.
Q. Did it make a very strong impression from what occurred at the time ?
A. It did, sir.
Q. What did Booth do then ?
A. He walked directly into the theatre.
Q. Did yon call anybody's attention to this at the time ?
A. I did.
Q. Who?
A. Sergeant Robert H. Cooper.
Q. Did yon point out at the time who Booth was ?
(Question objected to by Mr. Bradley and withdrawn.)
Q. Where did Booth then go 1
A. He entered the front of the theatre.
Q. Where did you go, and who went with you ?
A Sei^geant Cooper and myself went to an oyster saloon. Sergeant Cooper
v«B particularly with me.
Q. How Boon afker you got into the oyster saloon did you hear of the murder ?
A. We had not time to eat our oysters.
Q. What did you do when you heard of it t
136 TRIAL OF JOHN H. SURRATT.
A. We did not go to the theatre. We hurried right up H street to the camp.
I thought a detail would have to he made, and as I was first sergeant I would
hkve to be there.
Q. Did Sergeant Cooper belong to the same camp ?
A. He did.
Q. Did you both go up H street ?
A. Yes, sir, we both went up to H street, and out H street.
Q. When you got out to H street, what did you do ?
A. We passed out to Gamp Barry.
■ Q. What occurred on the way ?
A. A lady hoisted the window of her parlor, and asked
(Question objected to by Mr. Bradley.)
Mr. PiBRREPaxT stated that he would not press the question, and would turn
the witness over to the defence for cross-examination.
The court thereupon took a recess until to-morrow at 10 a. m.
Tuesday, June 18, 1867.
The Court met at 10 a. m.
Mr. PiERRBPO.NT said: If your honor please, when the court adjourned on
yesterday I had just put a question to the witness Dye, touching what occoned
as he and Sergeant Cooper hastened from the oyster Sfdoon up H street, to which
question the counsel for the prisoner objected. I withdrew the question for the time,
thinking then that I would renew it on the cross-examination. I .have come to
the conclusion, however, that it would be more orderly to ask the question in
the direct, and now propose to do so. I will ask it in such a form that the
gentlemen on the other side can take whatever exception to it they see proper.
The witness will understand that he is not to answer until the court has roled
upon it.
The question is this :
Q. You stated yesterday that you and Sergeant Cooper hastened up H street
What did you and Sergeant Cooper see as you hastened up H street ?
(Mr. Bradley objected to the question as irrelevant.)
Mr. PiBRRBPO.XT. We suppose, may it please your honor, that all the inci-
dents and facts that transpired at the time of (he murder are proper. We
suppose that a signal-light is proper; we suppose that a signal-whistle is proper.
Such have always been allowea to be given in evidence. We do not suppose
it is necessary to prove that the prisoner gave the signal-whistle, or that the
signal-light was displayed by him. I repeat it is our opinion that all the
incidents connected with a murder of this kind are proper to be given in evidence,
as having a tendency to throw light upon the question being inquired into.
The Court. It is very difficult for the court to determine at this stage, with-
out knowing what the evidence is, whether it is relevant and admissible. I
propose, therefore, to let the answer be given, and then if it be found to in aoj
way connect the prisoner with the transaction — the taking away of the life w
Abraham Lincoln — it will be regarded as proper evidence. If not, it will be
ruled out.
To this ruling Mr. Bradley reserved an exception.
Examination of Joseph M. Dye resumed.
By Mr. Pierrepont :
Q. Plea.'^e state what occurred sa you and Sergeant Cooper hastened up S
street.
A. As we were passing along H street out to Camp Barry, a lady hoisted »
window and asked us what was wrong down town.
Q. What did you say, and what did she reply ?
I told her that President Lincoln was shot. She asked mc who did it*
TRIAL OP JOHN H. SURRATT. 137
I told ber Booth. She asked me how I knew it. I told her a man saw him
"who knew him.
Q. Will 70a tell ns what was the condition of the moon at that time? •
A. I cannot say exactly. I disremember.
Q. Do you know whether it was full or different at the time ? '
A. It was light enough for us to see some distance on the street.
Q. Do you luiow whether the moon was up ?
A. Yes, sir ; I believe it was.
Q. Do you know whether the moon was then at or about the full ?
A. I cannot say.
* Mt.Bbadlby here interposed an objection to the course of examination being
ponoed. The witness had answered that he did not recollect what the condition
of the moon was, and he did not think it altogether proper to pursue this line
of examination further with leading questions.
Mr. PiBRRBPONT. Very well, sir; I will not press the examination further.
The ahnanac will show what the condition of the moon was on that night.
Q. Please describe this woman who opened the window, and with whom you
W this conversation.
A. She appeared to be an elderly lady.
Q. How was she as to being stout or otherwise ?
A. I could not say particukurly. 8he resembled the lady on the trial of the
Mipintors — Mrs. Surratt.
Q. Have you seen the house since 7
llhave.
Q. Do you know the number ?
A I do— 541.
•Q. Tell the jury which side of the street it is on as you go up.
A. As you go towards the camp — an easterly direction — ^it is on the right-
knd side.
Q. Is there anything peculiar ab^ut the house ?
A. Yes, sir. I recollect the steps distinctly as they appeared that night.
Q. Tell the jury how the steps are.
A. In order to answer her question I had to go up in the direction of the
te, which are very tall.
'Q. Will yon state what was the manner of this woman when she thus ad-
Medyoal
A. She just asked the question.
Q. State whether her manner was excited or not.
A. I do not recollect.
(ii What then did you do ?
A. Passed on out towards the camp.
Q. Did you pass swiftly or slowly 1
A. Passed along as on a fast walk.
Q. At the time she opened the window, state whether anybody was ahead of
J^ in the street.
A. There was not. We met two policemen a short distance beyond that,
^ kad not even heard of the assassination. What I mean by that is, that no
fcdestrians had passed that way.
Q. When you saw Booth and Surratt at the theatre, just before this occur-
woce which you have now described, was Booth disguised ?
A. No, sir. He had a slouched hat on.
Qp^Was Surratt disguised ?
-A. No, sir.
Q. Was the short man who was with him disguised ?
I A. No, sir. He was a villanous, rough-looking character,
in
138 TRIAL OF JOHN H. SURRATT.
Q. I mean as to tlie disguise of their dress. Was the dress of any of them
disguised 1
A. No, sir.
Gross-examination :
By Mr. Merrick :
Q. What is your age ?
A. I will be twenty-three next Angast.
Q. Where are you from 1
A. From Washington, Washington county, Pennsylvania.
Q. What was your business in Washington before you entered the army ?
A. I was going to school, and in a printing office before that time. Wash-
ington is where I went to school.
Q. Did you go to Washington College ?
A. No, sir. I went to what is called Union School, just opposite the college.
Q. When did you leave that school 1
A. About a year before I entered the army ?
Q. What year was that ?
A. 1862.
Q. Then you left the school in 1861 ?
A. Yes, sir ; between I860 and 1861- I do not exactly remember what time
it was.
Q. Did you leave the school for the purpose of going into the army ?
A. No, sir. I left the school to go with Adam H. Ecker, the editor of a
paper there, called the Washington Examiner.
Q. How long did you remain with him before you went into the army ?
A. A year and a couple of months, I believe ; somewhere in that neighbor-
hood.
Q. What was your business in connection with the paper ?
A. I set up editorials and such things as that.
Mr. PiERRBPONT. We do not wish to object to any reasonable latitude ; but
does your honor think it can possibly favor public justice to go into the question
as to whether a man wrote, or set type, or did something else 1 If your honor
thinks so, why, of course, I do not want to object.
The Court, I cannot see that it is of any great advantage either one way or
the other; nevertheless, it is responsive to the preliminary question that was pnt
to all these witnesses, as to their age, residence, occupation, &c.
Mr. Pierrlpont. All I desire is, to suggest that there be some reasonable
limit to such examination.
Mr. Merrick. I understand the limit to a cross-examination to be the daguerre-
otyping of the witness, as far as possible, to the jury.
The Court. You will proceed with the examination.
By Mr. Merrick ;
Q. Your business was setting up editorials 1
A. Yes, sir, and locals, and such things.
Q. Did you wrile'for the paper 1
A. No, sir.
Q. I understand you to say that on the 14th of April, 1865, you were sta-
tioned at Camp Barry ]
A. Yes, sir.
Q. And that, on that night, you came into town ?
A. Yes, sir ; on that afternoon.
Q. What time in the afternoon did you come in ?
A. In the evening, just before dusk.
Q. What time did you have tattoo at your camp ?
TRIAL OF JOHN H. SURRATT. 139
A. About nine o'clock.
Q. I suppose you were not there at tattoo ?
A. No, sir.
Q. What was your position in the camp ?
A. I was first sergeant.
Q. Of your company ?
A. Yes, sir.
Q. Who called your roll for you at tattoo ?
A. The first duty line sergeant generally.
Q. Did you have permission to go into town ?
A. I generally came into town whenever I felt like it.
Q. That was your habit ?
A. I was quartermaster before, and had a monthly pass. That pass, I be-
lieve, was not then quite out of date.
Q. I understood you to say, yesterday, that your pass was out of date?
A. I do not think it was ; but I could not properly use it. I should have
banded it to the captain.
Q. What did you mean, then, by saying that your pass was out of date ?
A. Out of date to me, because I had no right to use it.
Q. Why had you not a right to use it, if it was within date 1
A. Because I was promoted from quartermaster to first sergeant, and should,
therefore, have handed it in. My duty as quartermaster brought me into town
every day, as a general thing, for rations and such things as that.
Q. Do I understand you to say that it was your habiit, as first sergeant, to
come into town every day, or as quartermaster!
A. As quartermaster.
Q. What was your habit as first sergeant t
A. I generally came into town two or three times a week.
Q. Did you get*any jpermission to come?
A. Yes, sir, often. Our captain was not very strict ; he relied upon his men
to do their daty.
Q. He reliecl upon the honor and integrity of his men ?
A. Yes, sir.
Q. Did you feel that you were acting worthy of that confidence reposed in
you by your commanding officer, in coming into town, and remaining in after
tattoo, without permission ?
A. No, sir.
Q. What did you come into town for that night 1
A. To see the torchlight procession.
Q. What did you go to the theatre for ?
A. Because I ascertained the President was to be there.
Q. Did you buy a ticket ?
A. No, sir.
Q. You did not, then, go inside of the theatre ?
A. No, sir; I did not.
Q. I understood you to say yesterday that you took a seat on some planks
tbat were there ?
A Yes, sir, on a platform. I do not know whether it was composed of planks
or Qot, but I presume it was. It was a platform on which they got in and out
o^the carriages.
Q. You took your seat on that platform ?
A. Yes, sir; with my feet resting on the pavement.
Q. At what hour was that ?
A. About nine and a half o'clock.
Q. How long did you remain there ?
A. Until ten minutes past ten — a couple of minutes after that.
140 TRIAL OF JOHN H. SUBBATT.
Q. Did you go into the drinking saloon ?
A. No, sir.
Q. Did not you take a drink while you were there ?
A. No, sir.
Q. Did you remain seated on those planks all the while you were there ?
A. I did. I took my seat there and remained there until I left the place.
Q. Did Sergeant Cooper stay there beside you ?
A. No, sir. He walked up and down the pavement.
Q. When and to whom did you first communicate what you observed on that
night ?
A. I believe I first observed it to my father.
Q. To whom next?
A. No person in particular. I spoke of it in general conversation ; (after a
pause,) Oh, do you mean my suspicions on that night 1
Mr. Merrick. Yes, sir.
Witness. To Sergeant Cooper.
Q. Who did you first tell what you could prove as to what occurred on that night ?
A. I did not tell any person any such thing as that; I only told them what
I had seen. The first thing I knew I was summoned in town here.
Q. When was that ?
A. That was just before the trial at the arsenal.
Q. Who did you see when you came here after being summoned 1
A. I went down to the provost marshal's office, and from there to the old
capitol prison.
Q. Were you put in the old capitol prison ?
A. No, sir, not so bad as that.
Mr. Merrick : You may thank your fortune for not being court martialcd
for being out after tattoo ?
Witness: But discretion is the better part of valor sometimes.
Q. Who did you see at the provost marshal's office ?
A. I saw several gentlemen there.
Q. Who talked with you there particularly about what occurred on the night
of the 14th of April ?
A. The officer who was on duty.
Q. Who was he ?
A. He was a colonel. I do not know what his name was.
Q. What were you sent up to the old capitol prison for ?
A. To see if I recognized the villanous looking person, or any of the parties
in front of the theatre.
Q. Were you ever examined by any one before you testified at the military
commission ?
A. No, sir ; some questions were asked me at the provost marshal's.
Q. Was that the only time any questions were asked you by any officer or
person in authority ?
A. To the best of my knowledge it was.
By Mr. Bradley :
Q. And that was by the colonel ?
A. By the officer there ; I believe he was a colonel.
Q. Had he not a uniform on ?
A. His coat, I believe, was not a uniform one.
Q. What rank had he on his shoulder 1
A. He had a military blouse on. To the best of my knowledge he was a
colonel. I heard him addressed as colonel. Whether he was only a lieutenant
colonel or a full colonel I do not know.
By Mr. Merrick :
Were any photographB shown yon at the provost marshal's office t
i
TRIAL OF JOHN H. SURRATT. 141
A." No, sir.
Q. Pid you see any there ?
A. No, sir ; they were busy sending out for different persons in town. There
was a coat brought in then, I remember.
Q. Were any photographs shown you before you testified at the trial before
the military commission ?
A. There was not.
Q. When did you arrive in town 1
A. Last Monday a week.
Q. When were you here last before that ?
A. I was here the 10th.
Q. Before the 10th, when were you here ?
A. I was here in March, I believe.
The Court. The 10th of what?
Witness. When the court met before and the case was postponed.
Q. Were you here in March ?
A. Yes, sir ; I believe it was March. I am confident it was March.
Q. Who did you talk with when you came here last about your testimony,
on the 10th of March, as you say ?
A. I talked with General Carrington.
Q. Any one else ?
A. Mr. Wilson, sometimes.
Q. Any one else ?
A. No, sir.
Q. Sergeant, in looking over your testimony of yesterday, I observe that
you give quite a succinct narrative of what transpired on the night of the 14th
of April ; mention the name of Booth ; speak of a villanous-looking person,
and then speak of a third party neatly dressed. You describe the latter through-
out as the " third party neatly dressed." Can you give any reason to the jury
why you did not mention his name in the first instance 1 You knew who he was.
A. I did not think it was necessary until I was called upon to point him out.
Q. You knew his name ?
A. I knew his name after I had seen him.
Q. You knew his name when you took the stand yesterday ?
A. I did.
Q. Why, then, did you not use his name instead of referring to him as the
" third party neatly dressed 1 "
A. I^cause I did not think it was necessary until I was called upon to point
him out.
Q. Did you think it was necessary to use Booth's name ?
A. I used it just because I deemed it necessary in my own mind.
Q. Why did you deem it necessary in your own mind to use one name and
not to use another ?
A. J did not think it was necessary to use the other name until I was called
upon to identify him.
Q. Were you not told not to use his name ?
A. No, sir; I was not.
Q. Please tell us what was the position of these three men when you first
observed them ?
A. Just as I gave it yesterday; Booth was speaking to this rough, villanous-
looking person, and just then this third party appeared.
Q. How long was that after you had taken your seat upon the planks ?
A. Very soon.
Q. Five or ten minutes ?
A. No, sir, not that long. *
142 TRIAL OF JOHN H. 8UBRATT.
Q. Tell the jury where Booth and this villanous -looking person were stand-
ing when you first observed them.
A. Below the door next to Pennsylvania avenuo, just at the entrance
between the saloon and the door of the theatre where you enter the vestibule.
Q. How far from the wall of the building ?
A. Close to it.
Q. How wide is the sidewalk ?
A. I presume some fourteen feet.
Q. Where did this neatly-dressed third party come from when he joined the
two?
A. I cannot say.
Q. From which side did he approach them ?
A. I do not know. I did not see him until he was right in with them.
Q. How long did they stand there together ?
A. For some time.
Q. About how long 1
A. Until that man began to call the time.
Q. How long about did they stand there ?
A. I presume they were all three of them together there about ten or twelve
minutes.
Q. At that time ?
A. They were never together afterwards — all three of them.
Q. I want to know how long they remained there together conversing ?
A. Well, I suppose ten or twelve minutes. It might not have been that
long.
Q. Did they talk loud enough to be overheard ?
A. No, sir ; only Booth in using the expression to which I have referred.
Q. Did they speak in a whisper ?
A. They did.
Q. Was the expression you speak of made use of by Booth while the three
were standing there together 1
A. Yes, sir.
Q. Was it made before any one of them had examined the carriage ?
A. Yes, sir.
Q. Thea, as J understand you, you now tell the jury the two were talking
together when the third joined them ; and that that was the first time you
observed them, and that the three remained together ten or twelve minutes ?
A. Yes, sir.
Q. All you heard was the exclamation of Booth, " He will come out now."
A. Yes, sir.
Q. And that up to that time nothing else had occurred except their being
together and talking ?
A. No, sir.
Q. When Booth made this remark what did they do ?
A. The rush was then coming down.
Q. Let us have the remark.
A. " I think he will come out now."
Q. What did they then do ?
A. They lined themselves below the door ; that is, towards Pennsylvanui
avenue. They were below the door facing the space the President would have
to nass in, in order to reach his carriage.
Q. They were then below the door, towards Pennsylvania avenue, firontmg
F street?
A. Yes, sir ; looking up in that direction — just facing the passage from the
door to the carriage.
Q. You were still occupying your seat ?
TRIAL OF JOHN H. 8URBATT. 143
A. I was.
Q. In what order did they stand ?
A. They stood facing that space.
Q. Who stood nearest the theatre.
A. The villain.
Q. Who stood next ?
A. I do not recollect ; I think, thongh, it was Booth.
Q. Who stood next t
A. The third party — John H. Surratt.
Q. You cannot be mistaken in what yon have said about their position ?
A. Not at all.
Q. I understood you to eay yesterday, that when Booth said, ** I suppose
he will come out now," you supposed him to refer to the President ?
A. Yes, sir.
Q. Why did you suppose so ?
A. Well, I presum^ bo. I was not any ways excited then myself, and I
thought they were speaking just as other persons would who were anxious to
Bee him.
Q. You had, however, observed them, had you not t
A. Yes, sir ; particularly on account of Booth holding conference with that
villain.
Q. That was what first attracted your attention t
A. Yes, sir.
Q. To see a gentleman talking with so villanous-looking a man ?
A. Yes, sir.
Q. Did you also observe them particularly when they were lined ?
A. I saw them in their positions. Some of the parties coming down out of
the theatre passed between some of them.
Q. After you got them into line, what occurred next f
A. President Lincoln had not i^peared, and these parties who came down
after a drin^, went up again.
Q. What did the three men do ?
A. Booth stepped into the saloon adjoining the theatre in the direction of
Pennsylvania avenue.
Q. Wliat did the villanous-lookiog man do?
A. He remained in position near the passage.
Q. In or out of the theatre ?
A. Out of the theatre, right against the wall. He never changed his posi-
tion while I observed him.
Q. What did the man you called Surratt do t
A. He walked out and looked at the carriage in the rear.
Q. Did he walk around the carriage t
A. He went into the rear of it, and nearly stumbled over my foot as he was
passing me.
Q. What did he do then ?
A. He came back again. Booth in the mean time had come out of the sa-
loon, and stepped into the passage. Surratt then joined them, and as Booth
appeared from the passage, Surratt stepped up to the clock and called the time.
Q. Where was that clock ?
A. In the vestibule of the theatre, opposite the door.
Q. Whereabouts in that vestibule ?
A. I cannot exactly describe that. I know the clock was there, that is all.
I think it was right above the ** delivery of tickets,'* if I am not mistaken.
Q. Did yon see it?
A. I have seen it I could not see it just exactly as I sat then.
Q. Was not the clock right opposite uiQ door ?
144 TRIAL OP JOHN H. 8UERATT.
A. Tt was as you went in the vestibule.
Q. There is a door that leads into the vestibule ?
A. Certainly.
Q. You walk into the vestibule and then see the clock right in front of you ?
A. Yes, sir.
Q. This man whom you call Surratt, you say, stepped up to the door and
looked at the clock ?
A. Yes, sir ; and called the time.
Q. What did he do then ?
A. He walked up towards H street.
Q. The villanous fellow still retained his position 1
A. Yes, sir.
Q. What did Booth do ?
A. He stood in conversation with him.
Q. How long a time passed from the time when they lined themselves oppo-
site the space where the President was to pass, and the time this man called the
time?
A. About five minutes.
Q. They then lined themselves, and this man Surratt examined the carriage ?
A. Yes, sir.
Q. He went up and joined Booth when he returned from the passage, and
that occupied five minutes 1
A. Yes, sir.
Q. He then went up the street ?
A. He did.
Q. And Booth remained talking with the villanous-looking man 1
A. He did.
Q. How long was it before this man whom you call Surratt returned ?
A. It was very soon. I cannot state the time exactly. It might have been
some five or ten minutes. I think it was at least five minutes.
Q. Did he go up the street, or did he go in the alley-way that leads back
into the theatre ?
A. No, sir; he went up the street.
Q. He then returned?
A. Yes, sir.
Q. What did he do when he came back ?
A. He immediately stepped in front of the theatre again, and looking in the
vestibule called the time to those two.
Q. Where were those two standing?
A. In the same position, just below the door towards Pennsylvania avenue.
Q. What did he do after he called the time ?
A. Turned on his heel and started up the street again.
Q. Did he speak to them ?
A. He just directed the time to them. He was very much excited. That
was the first time my suspicions were aroused of there being anything wrong—
the manner of those two conversing there, and his coming down again and caJl-
ing the time to them.
Q. In what manner did he attract their attention ?
A. The moment he appeared they observed him, and he hallooed the time to
them.
Q. How do you know they observed him ?
A. They looked at him.
Q, Did he look at them ?
A. He did.
Q. Did he sneak to them ?
A. He called the time to them.
TRIAL OP JOHN H. 8UBRATT. 145
Q. Did he address them?
A. He could not, from where he stood, without having his private matters
heard.
Q. That is your conjecture ?
A. That is my conjecture, and my conjecture, I believe, is right. I have not
the least doubt of it.
Q. He did not, however, in point of fact, address them ?
A. He just told them the time in a very excited manner.
Q. And you said he could not address them because their private matters
would thereby be revealed ?
A. He could not address them unless he wanted to be heard by persons
all around them. Men engaged in such plots are generally disposed to be a little
smarter than that.
Q. Did it never strike you that it would have been more consistent, if he
was engaged in a plot like that, for him to have looked at the time and whis-
pered it to them ?
A. I think there was something up H street that attracted his attention as
soon as he called the time to them. He may have been conferring with Payne,
at H street, for all I know.
Q. Don't you think it likely he was ?
A. I do not know; I have my own conclusions.
Q. Then you account for his failure to carry out what would have been the
ordinary course of a man in a plot of that kind — that is, to have looked at the
time and whispered it— -on the ground that there was something up H street that
attracted his attention ?
A. That is why he hurried up there.
Q. Is that the reason why be called out the time in a loud voice ?
A. I believe he was regulating the time for Booth, Payne, and the whole of
them to strike.
Q. He was a general commander 1
A. Yes, sir.
Q. Did you dream that 1
A. No, sir.
Q. If he was regulating the time for all these men, who else was there within
the scope of your observation who could hear him call the time ?
A. No one else.
Q. How far is it from the theatre up to H street ?
A. Two blocks, I believe. He just had time, in my estimation, to walk up
there in a rapid manner and get right back again in time to call the last time.
Q. Did you see him when he went across F street ?
A. No, sir ; I could not.
Q. It was moon-light, wasn't it ?
A. The light was there right in front of the theatre, and it kind of blinded
one in looking up in that direction.
Q. There is one point in regard to which I don't distinctly understand you,
and I desire to do so. I asked you whether it was not more consistent that he
should have looked at the time, and gone and whispered to these men, than to
liave hallooed out ? You say you think it was because he was regulating time
for some persons up H street.
A. That is my opinion.
Q. How did his calling out the time so that other people could hear it, help
to regalate the operations pn H street ?
A. They could not hear it on H street.
Q. What did he call it for, then ?
A V U 4,U
146 TRIAL OF JOHN H. SURRATT.
Q. But yon say that it would have been more natural that he should have
whispered it ?
A. I said that, did I ? He appeared to be in a very great hurry, and hadn't
time to whisper. He did not take time to go right to them, but stood there and
hallooed it.
Q. And then hurried up in the direction of H street ?
A. Yes, sir ; I cannot say that he went clear up to H street, but I know it
just took him as much time as would be required to walk those two blocks and
back again in a rapid manner.
Q. He was a neatly dressed gentleman ?
A. He was.
Q. Most gentlemen who are dressed as neatly as you say he was carry a
watch, do they not ?
A. I have seen cases where they did not.
Q. Don't you think that a conspirator, moving upon time land seconds, would
be likely to carry a watch for the occasion ?
Mr. PiERRBPONT interposed an objection to the present line of examination.
It was not the opinions, but the facts within the knowledge of the witness, that
were wanted.
Mr. Merrick stated that the witness had given an opinion, and he thought
it but fair to show how that opinion arose — its absurdity, and the bias that in-
duced it. However, he would not pursue the examination on that point any
further.
Q. He did not speak to them ?
A. He just spoke the time, and then hurried up towards H street.
Q. How long a time elapsed from the time of his appearance until the time
of his disappearance on this second occasion ?
A. At the rate he was going, which was very fast, just about the time that
it would have taken him to have walked from there to H street.
Q. Five minutes ?
A. Well, you can judge of the time it takes to walk two blocks as well as I
can. He was walking as fast as he could walk.
Q. You say your suspicions were very strongly excited ?
A. They were at that time.
Q. Was it then that you undid your handkerchief from around your pistol ?
A. It was at the time of the second calling that I undid my handkerchief
from around my pistol.
Q. What did the other two do after he left there, subsequent to the second
calling of the time ?
A. They remained there.
Q. In the same position ?
A. Yes, sir, and in deep conversation.
Q. How long a time elapsed before he came again upon the scene ?
A. I believe it was not as long as before.
Q. What then occurred ?
A. He then called ten minutes past ten o'clock.
Q. Where was he ?
A. Just where the light &om the vestibule shone plain on his face.
Q. Was there anybody else about there at that time ?
A. Sergeant Cooper.
Q. Anybody else 1
A. Yes, sir ; some others, but I can't recollect how many. I was paying
very strict attention to those movements.
Q. When he called the time the third time, did he stand in the same rebuild .
position to these men and the door as when he called the second time 1
A. Just about the same ; but this time he was very nervous and excited, and
TBIAL OF JOHN H. SUBRATT. 147
looked directly in the face of Booth. My Buspicions were eo aroused that I
observed him very closely — even the movements of his lips, which were thin
and pale. It was that face in that order that 1 afterwards saw in my
dreams.
Q. How far was he from Booth ?
A. About seven feet.
Q. Booth was down between him and the avenue, was he not ?
A. Just below the door there.
Q. Was he on a line with Booth ?
A. The two men were standing against the wall, and he was standing there
in conversation with them. You can judge the distance. The rough had his
back against the wall, with his face turned towards the outside of the street —
towards the curbstone. Surratt was in front of the entrance of the theatre,
Btanding a little nearer to the theatre, just on a line with Booth and the villain.
Q. But one was standing against the wall, and the other was fronting him ?
A. Yes, sir ; Booth was a little further out than he was. I presume, if a bee
line had been drawn. Booth would have been found to be a little further out
towards the curbstone than he was.
Q. What did he do after he called time on this third occasion ?
A. He made a very rapid disappearance up towards H street.
Q. How was this man's beard ?
A. He had no beard. He had a moustache, but that was a very small
one.
Q. The light shone full on his face from the vestibule 7
A. Yes, sir.
Q. As he looked at th*e clock ?
A. Yes, sir.
Q. It was then you saw him ?
A. Yes, sir.
Q. Do you tell the jury it was then you saw him, and yet you did not change
your place since you originally took il on the curbstone opposite the vestibule ?
That you could see his face when he was standing between you and the light,
and looking at the clock which was in front of him ?
A. I could see him very readily.
Q. Through the back of his head ?
A. No, sir ; I was sitting kind of below the point where he was standing,
near the very end of the platform, and looking in the same direction that he
was — only his face was turned a little more towards the wall than mine was. I
could see his face very readily. ^
Q. How far were you from him ?
A. I was about on a line with those other two.
Q. Those other two were standing between the door that leads into the
theatre and the door that leads into the restaurant ?
A. Yes, sir.
Q. How wide is the space between the door that leads into the theatre and
the door that leads into the restaurant ?
A. I presume some fifteen feet. It might not be that much.
Q. I understood you to say, yesterday, that there was pictured in that coun-
tenance great excitement and nervousness ?
A Yes, sir; and there was.
Q. Had you ever seen John H. Surratt up to the night of the 14th ?
A. Never, to my knowledge.
Q. When did you next, after that, see this individual whom you call John
■ H. Surratt ?
A 1 saw him here in Washington.
TRIAL OF JOHN H. SURRATT. 149
A. No, air.
Q. Did not 70a request to see him ?
A. No, sir. They told me I had better go there and see whether I would
recognize him ?
Q. What did you say ?
A. I told them I would go.
Q. Did you know Booth ?
A. I did.
Q. How long had you known him I
A. I had known Booth during my stay here in Washington. I was here in
Washington nearly the whole of '64.
Q. Were you on social terms with him?
A. No, sir. I had seen him at the saloon. I was on social terms with the
bar-tender of that saloon below the theatre.
Q. In your dreams of Booth have you ever seen him in any other position
than that in which you saw him that night ?
A. No, sir. The one who attracted my attention more particularly than did
Booth was the 'nllain?
Q. What is your religious faith I
A. I am a Protestant
Q. Of what denomination ?
Mr. PiBRRBPONT. I must object to that.
Mr. Mbrrick. I will waive the question. I thought it possible that he was
a Swedenborgian.
Mr. PiBRRBPONT. We don't desire to bring religion into this case in any
way.
The District Attorney. I have no objection to the witness disclosing his
religion, but we object upon principle to introduciug any religious inquisition
into a court of justice.
Mr. Mbrrick. I have no purpose to introduce religious inquisition, nor to fol-
W your example in any particular.
The District Attorney. I think that remark is entirely without founda-
ticm.
Mr. PiBRRBPONT. I hope we shall avoid all such controversies, and try this
Solemn case in a solemn way.
Mr. Bradley. Well, we are all solemnized now. Let's get on.
Q. Have you ever had any communication with spiritual mediums ?
A. No, sir. I don't believe in such foolishness as that. I cannot say that I
^m a firm believer in dreams, but I have often seen things in my dreams that I
have seen before.
Q. Don't you often in your dreams have things presented to you which are
^ happen, and then have those things happen ?
A. I do not know that I have. I do not put any trust in dreams of events
Uiat are to happen ?
Q. But have you not seen things in your dreams that had not then happened,
but which did afterwards happen ? Have yon not been in positions in your life
^bich were familiar to you when you thought of the past, and yet in which you
bad never really been before ?
A. 1 have dreamed I was married, but I was not married. I was afterwards,
however.
Q. Did yon see the vision of the bride in your dreams ?
A. Well, I saw the person I had communication with — that is all. It did
happen that I got married.
Q. To the same person presented before you in your dreams ?
150 TRIAL OP JOHN H. SUBRATT.
Q. Then there are some of your dreams which tell of the future as well as
the past.
A. Yes, sir; but I never put confidence in them, or allow them to bother me.
Q. But they obtrude themselves upon you sometimes, do they not ?
A. Not materially.
Q. But they do to some extent ?
A. That is the only case.
Q. Don't you find that you sometimes have a dream recalled which it is dif-
ficult for you to shake off?
A. When I dream of falling from any height, or anything of that sort.
Q.' I mean the next day 1
A. I simply think of it as a horrible dream — that is all. It soon goes away ;
generally after breakfast.
Q. Did you say you were examined at the conspiracy trials.
A. I was.
Q. Did you state there that you knew Booth ?
A. I have known him by sight. I believe I stated on the occasion of that
trial that I knew him. A photograph was handed me, and I told them that was
Booth.
Q. Did you state to that commission that the man, or one of the men, you saw
conversing there that night was J. Wilkes Booth ?
A. Yes, sir.
Q. I understood you to say that after these three parties lined tbemdelvefl
opposite the space the President was to pass, the man whom you called Sunratt
went out to examine the carriage, and stumbled over your foot 7
A. Yes, sir.
Q. After it?
A. Yes, sir; that is, after President Lincoln didn't come down.
• Q. Did you state on your examination before the military commission that
one of the three ])arties had been standing out, looking at the carriage, on the
curbstone, while you were sitting there, and then went back ; that they watched
awhilC; and the ru»h came down ; that many gentlemen came out and went in
and had a drink in the saloon ? Then, aftey they went up, the best dreaaed
gentleman stepped into the saloon himself; remained there long enough to get
a drink, and came out in a style as if he was becoming intoxicated ? Is that
your testimony ]
A. That is my testimony 1
Q. Then, in this testimony, you state that the examination of the carriage
had been made before the rush came down, and " before the President did not
come down as they seemed to expect." In your testimony now, as I understand
you, you say that it was " after he did not come down, as they seemed to ex-
pect," that the examination of the carriage was made ?
A. Yes, sir ; the rush was a long time coming down. They did not all come
down at once.
Q. Then you think these are harmonious statements 1
A. Yes, sir ; that is correct. I have thought more deeply over it, and have
figured it out since the best I could.
Q. This testimony, then, before the military commission is not correct, and
what you now state is correct ?
A. I see nothing wrong in it.
Q. Then why do you say you have thought more deeply over it since 1
A. I have not changed it materially.
Q. Is your mind the same now that it was when you testified down at the
arsenal ?
A. It is a little clearer now.
Q. In what particular is it a little clearer 1
TRIAL OF JOHN H. SURRATT. 151
A. In the transactions in front of the theatre.
Q. Then wherein does your recollection differ now from what yonr recollec-
tion was at the time of that trial, with regard to the examination of the carriage ?
A. Not any at all.
Q. Then it is no clearer as to that ?
A. It is a little clearer.
Q. Then, if it is a little clearer, in what particular is it a little clearer ?
A. There are little incidents that I did not think of before.
Mr. Merrick. I am not calling yonr attention to any little incidents. In
jour examination before that commission yon stated that a man had been stand-
ing out and examining the carriage before the time when they expected the Presi-
dent to come down. You now state that the man went out to examine the car-
riage after the time they expected the President to come down. Which is correct ?
A. It was all about the same time. I can say that my testimony now, and
then, is just the same. I believe he was out there just immediately as they
commenced to come down. I know he was there, and know it from the fact of
my foot being in his way. I have thought deeply over this, and every particular.
Q. How large a man was J. Wilkes Booth ?
A. He was a tall man — a heavier man, a great deal, than Surratt.
Q. How tall was he ?
A. As tall as I am.
Q. How tall are yon ?
A. Abont five feet eleven ; I was five feet ten and a half some time ago—
g:ue8s I am eleven now.
Q. How large was the mean-lookiog man ; yon say he was rather low in
BUture?
A. Yes, sir ; jast such a man as Edward Spangler.
Q. Without the moustache ?
A. Yes, sir.
Q. Are you as confident about the identity of Spangler, as you are about the
identity of Surratt ?
A. No, sir ; the shade of the wall, you know, kind of hid Spangler. He was
leaning against the wall ; the light did not strike exactly there.
Q. Did you, or not, testify before that commission to this effect : That after
Booth (the well dressed man as yon call him in this report) came out from the
saloon, he stepped up and whispered to this ruflSan, (that is, the miserablest one
of the three,) and then went into the passage that leads to the stage from the
street ; then the smallest one stepped up and called the time ?
A. That was my testimony then, and it is my testimony to-day.
Q. That the smallest one of the three called the time ?
A. Yes, sir.
Q. Did you state before the military commission, when asked to describe the
thii^ party, as is reported here : " He was better dressed than any I see here.
He i)ad on one of the fashionable hats they wear here in Washington, with round
top and stiff brim. Q. Can yon describe his dress as to color and appearance ?
A. No, sir, I cannot describe it. Q. How was the well dressed man as to size ?
A. He was not a large man — about five feet six inches hieh." Did you state that ?
A. Yes, sir ; from sitting down. That is what I judged from.
Q. Do you now state that the man that called the time was five feet six inches?
A. No, sir ; but from my position, sitting down on the curbstone, I should
bave judged him to be five feet six or seven inches. I paid no particular atten-
tion to that, so as to be able to judge exactly his height.
Q. He was not a largo man then, but is a large man now. The man you saw
hu not changed so much as that, has he ?
A. I call a man a large man if he be only five feet high, if he is heavily built.
152 TRIAL OP JOHN H. SURBATT.
Q. But this was an inquiry as to his height, and 70a answered five feet six
inches ?
A. Yes, sir ; that is what I thought ; I was sitting down ; I did not intend
to be very precise in describing the size of the man. What I meant by the
smallest man was the slimmest one.
Q. You then knew that Booth was 5 feet 10 J or 11 inches ; and you then
testified that the smallest man of the three called the time ?
A. I was not so confident of Booth being 5 feet 1 1 inches. I thought he was
somewhere about my own size.
Q. When you said this man was the smallest man of the three, did you mean
that he was the slimmest man of the three 7
A. I meant he was the lightest man.
Q. Now, I will ask you this question : According to your recollection of the
appearance of those men there that night, was there not of the three men one or
two who were over 5 feet 6 1
A. Well, I am a better judge now than I was then.
Q. Why so ?
A. Because I have measured men every day.
Q. Has that been your business ?
A. Yes, sir.
Q. How so ?
A. As recruiting sergeant ; I have to take the heights of the men. Then I
was no judge at all. 1 was then not observing the height of the men particu-
larly, but what they did and said.
Q. You say you stated to the military commission that the man who had such
a villanous look was the shortest, but yet the heaviest man of the three ?
A. No, sir ; I said that at the provost marshal's office.
Q. Did they write it down there ?
A. I do not know. They sent me up to the Old Capitol prison to identify
him. I pointed out Edward Spangler as the man. He was among others who
were brought up. Sergeant Cooper was present.
Q. Was he the smallest one ?
A. He was the largest man, although the shortest, in my way of speaking.
Q. Did you testify before the militaiy commission as follows : " Q. About
how high do you think the man dressed in slouched clothes was 1 A. He was
about 5 feet 8 or 9 inches high ' ?
A. I believe I did.
Q. Then did you not testify at the same time that the genteelly dressed man
was 5 feet 6 inches ?
A. Yes, sir.
Q. Then if you did that, was not the man with the slouch hat the lai^;er of
the two ?
A. Yes, sir; he was larger in proportion. I mean by large, a man who is
stout and heavy ; not that he is the tallest. I will say here that I had not a
good judgment of the man against the wall ; because he was in a leaning attitude.
Q. I understand you to say that Booth was taller than the man who called
the time ?
A. No, not particularly. I did not pay much attention to the height then;
but now, since I have looked at it, I do not believe there is much difference in
the height.
Q. Looked at what ?
A. At the position of the men ; at the position they had occupied.
Q. You mean, then, since you have looked at John Surratt ?
A. No, sir ; I mean since I have been in the habit — since it has become my
bnsinesBB to measure the height of men.
TRIAL OP JOHN H. 8URRATT. 153
Q. Did you state to the military commission that 70a paid no particular at
tention to their heights ?
A. Noy sir ; I only gave what I supposed to he their heights.
Q. Can you account to this jury for the fact that when you were called upon
to speak of this man hefore the military commission, you should have picked out
from the three one, and said the smallest one called the time ?
A. I called him the smallest man because he was so thin.
Q. Then afterwards you stated that he was five feet six ?
A. I stated that was my judgment
Q. You say now that Booth was Hve feet ten and a half or eleven, and the
other, Spangler, five feet eight ?
A. I could not on my oath say how tall Bpangler was, because he was lean-
ing against the wall and not straightened up.
Q. Can you tell us why, when you said the smallest man called the time, you
did not explain to the commission that you referred only to heft and not to
beight ?
A. Because it was not necessary.
Q. Then you told the commmission that the smallest man of the three called
the time ; that he was five feet six ; the other ^ve feet eight, and the other, again,
five feet ten, and never explained that you did not mean the height 1
A. No, sir ; with regard to the man standing against the wall I could not tell
▼hat his height was, but I judged him to be the height mentioned there, when
straightened up. I did not consider my judgment then as to height worth any-
thing at all ; now, however, I do.
Q. If you knew John Wilkes Booth at the time of the trial before the military
commission, why did you not tell the commission that it was Booth whom you
saw there that night 1
A. They gave me the picture in order to have me satisfy myself before them
that that was the man.
Q. Then you did not tell them that it was Booth you saw talking there ?
A. Yes, sir; I did.
Q. How did you tell them ?
A. I told them it was Booth who came out of the restaurant. They showed
me his photograph, and I told them that was the man to whom I referred.
Q. Did not they show you that photograph at the provost marshal's office
before going down to the military commission ?
A. They did not.
Q. Let me ask you if this is correct —
**Q. How was the well-dressed man as to size ?
"A. He was not a very large man — about five feet six inches high."
Did you testify to that ?
A. I did ; but I had no reference to height.
Q. Then why did you say ''five feet six inches high?"
A. I put that in afterwards. I meant that he was not a very large man. A
ikian forty-four inches across the breast is a large man, in my opinion, if he be
oqIt five feet four inches in height.
Q. When you were examined before the military commission did you see
Uiere present the same man who had examined you at the provost marshal's
•fficef
A. No, sir; not to my knowledge. I did not get to see the cross-examiner
tt alL The man who was cross-examining was sitting in the rear of me. I was
^t allowed to face him at all; I faced the major generals. The questions were
^ed me firom the other side.
Q. Did yon, in your examination before the military commission, give uy
ieoeription of the individual — the third party — whom yon now call John H.
154 TRIAL OP JOHN H. 8UBRATT.
A. I did.
Q. Did you Bay then anything about the light ehining on his face ?
A. I cannot now recollect whether I did or did not say anything about the
light.
Q. Did you eay anything about his pale face ?
A. I have not read my testimony over for some time.
Q. I am not asking whether you have read your testimony or not, but as to
what you testified to.
The Court. Mr. Merrick, do you propose in the cross-examination of each
of these witnesses to take up the testimony delivered somewhere else, and go
through it seriatim, and inquire why they did not say this, and why they did
not say that ?
Mr. Merrick. No, sir.
The Court. If there is anything in regard to which you wish to contradict
the witness, the proper way is to lay the foundation by asking him whether he
said so and so. That is the usual rule. We will never get through in this
way. You have now been two hours examining this witness.
Mr. Merrick. I think it was very profitably spent, your honor, although it
may appear rather self-complimentary to say so. I do not wish, sir, to trans-
gress any rule, but to keep entirely within proper limits.
The Court. I do not object to considerable latitude, but the cross-examina-
tion ought to be kept within bounds, and with some regard to the general rules
of evidence on the subject.
The court here took a recess for fifteen minutes.
afternoon session.
Cross-examination of Sergeant Dye continued :
By Mr. Merrick :
Q. Will you state whether there was anything else that excited your suspi-
cions except what you have already told the jury ?
A. No, sir.
Q. At what time in the relation of incidents did your suspicions become ex-
cited?
A. At the second calling of time.
Q. It was then you undid your pistol ?
A. Yes, sir.
Q. Did you think it anything remarkable to see Booth about that day ?
A. No.
Q. It was only remarkable, as I understand you, that a well dressed man
should have been conversing with so villanous a looking man %
A, Yes, sir.
Q. I desire that you will describe to the jury, as near as you can, the location
of that clock ?
A. To my recollection, just as you went into the theatre, you look right be-
fore you and you will see it. To my mind the clock was right in front of yon
in the vestibule.
Q. Right in front of the middle door, was it 1
A. That is my recollection ; it was right square up before you as you go in.
Q. You could not see it from where you were silting ?
A. No, sir ; I could not see inside the door.
Q. You were sitting on the edge of the plank, as I understand ; was the car-
riage above or below you ?
A. The carriage was above me — ^the rear part of it.
Q. Which way were yon facing as you sat on the platform ?
A. Facing the theatre.
TRIAL OF JOHN H. SUKRATT 155
Q. You have said that you went afterwards to take some oysters ; please to
tell the jury what was the nature of the suspicion you had ?
A. I thought there was something wrong going on, or that was not right.
Q. Of what nature?
A. I thought it was something against the President, but I could not say.
The excited manner of the man calling the time and his frequent whispering
there was what attracted my attention.
(Objection by district attorney that the suspicions of a witness are not admis-
sible. Much ktitude is to be allowed in cross-examination, but counsel for the
defence have transcended the discretion allowed even upon cross-examination.
The court said there was no objection to a witness stating as a part of the res
gesta, that certain actions of other parties excited suspicion in his mind, but it
was inadmissible to examine him as to the nature of those suspicions.
Mr. Bradlev admitted that the question would be inadmissible on an examina-
tion in chief, but held it to be within the legitimate limits of cross-examination.
The court ruled the question to be inadmissible.
Exception to ruling taken by counsel for defence.)
Q. Yon went, as you have stated, to the oyster-house ; what did you do after
you went there 1
A Ordered oysters.
Q. What next?
A. We sat down to eat them. I do not recollect whether we ate all of them
or not ; I do not think we did. A man came rushing in and said the President
was shot.
Q. What did you do then ?
A. We immediately got up and started for camp.
Q. Why did you go out to camp ?
A. We went out to camp because we did not know but there would be a detail
made of a guard.
Q. Was that all you did after you started out of the oyster-house ?
A. Yes, sir ; we hurried out to camp. I was the first one who told General
Hall, after I got there, that the President had been shot.
Q. How came you to tell this lady at the window on H street that Booth had
shot the President ?
A The man who came into the saloon said it was Booth. It confirmed my
Bospicions immediately, and I so spoke to Sergeant Cooper, that I was right in
mj suspicions in front of the theatre of their actions.
Q. Have you ever testified to that before in any of your examinations ? Have
70a ever stated this affair on H street ?
A I have not. This occurred to me a long while afterwards. I never knew
where the Surratt's lived until within three months.
Q. It occurred to you after that trial ?
A O, yes ; after I ascertained they lived on H street, I asked where the
house was, and since I have arrived here I went to the house, and the house
was familiar to me.
Q. I understand you to say that the lady you saw then resembled the one you
flaw at the conspiracy trial ?
A. Yes, sir.
Q. Did that strike you when you saw her at the conspiracy trial ?
A. No, sir ; it did not.
Q. When did it first strike you?
A. Since I learned of the house on H street,
Q. Did not you know the house on H street at that time ?
A« No, sir ; I never knew it until I came to this city lately.
Q. Then it never struck yon that the lady yon saw at toe conapiiacy tria
156 TRIAL OF JOHN H. SURRATT.
resembled the lady you eaw on H street, until you learned that Mrs. Surratt's
house was on H street ?
A. Not until I learned that she lived there, and the relation of the house to
the incidents that had occurred.
Q. How long after the trial was that ?
A. Some time after. Since I came hack to the city.
Q. You did not know at the time of the trial that Mrs. Surratt*e house was
there ?
A. No, iir, I did not.
Q. What recalled this to your mind ?
A. When I learned that her house was on H street, after I came back to
Washington.
Q. Two years afterwards ?
A. Yes, sir ; I remember that she was an elderly lady.
Q. Then you saw Mrs. Surratt on the trial, as I understand you, within two or
three weeks of the occurrence on H street, and it never struck you that she re-
sembled the lady who looked out of the window that night ?
A. No, sir ; it was when the question was raised in the press of the country
that Mrs. Surratt had been condemned unjustly that all this came into my
mind about her. I learned that she lived on H street, and 1 remembered the per-
son asking what was going on down town, in a state of excitement, although no
person had passed that way. I thought it was a person who knew something
was coming off down town ; that is it. I believe it in my own mind, too, that
she knew all about it, and was waiting with a dim light in the parlor.
By Mr. Pierrepont :
Q. You stated in your cross-examination that your judgment two years ago
about men's height was not of any value, but that it is now of considerable valne;
why is it of greater value now than it was two years ago ?
Question objected to by Mr. Bradley as having been already answered.
Mr. Pierrepont thought not, directly.
The Court. The record taken by the stenographers will show that the wit-
ness was asked this question, and he answered that his judgment was better now
than then, because for the last year or more he had been engaged in enlistin?
men ; that it was his business to take the height of every man he enlisted, and
that in that way he had become ah expert or judge of the height of different
persons.
Mr. Pierrepont. I am quite content with that statement. I will ask the
witness but one other question.
Q. State whether you have ever had a habit of considering or speaking of
men 5 feet 6 inches high — men weighing 130 — as large men or small men.
Mr. Bradley. We object to that question.
Mr. Pierrepont. The question is in response to questions they have asked
the witness in relation to large men and small men.
The Court. And he has answered that he estimated the size of men by their
heft rather than by their height.
Mr. Pierrepont. That is all I desire to have understood.
By a Juror:
Q. I wish to ask the witness whether he saw the entire full face of the pris-
oner fi-om the position he occupied on the carriage step on the night in question?
A. J saw all the time three-quarters of it, and a part of the time the whole
it.
By another Juror :
Q. How was the prisoner dressed on the night of the assassination ?
A. His coat was drab, his hat was something like this hat I have here, but bo
TRIAL OF JOHN H. 8UBRATT 157
exactly; one of these fashionable rouod-top, stiff-brimmed. It appeared, to mj
recollection, to have been black.
Q. How as to the pants ?
A. I do not recollect.
Q. Had he on a watch chain or guard that night ?
A. I did not observe any.
Peter Taltavul sworn and examined.
By Mr. Pibrrbpont :
Q. Where did you live on the 14th of April, 1865, on the day the President
was murdered ?
A. I lived on Eighth street east, at the Navy Yard, between G and I, south.
Q. Where was your place of business ?
A. On Tenth street.
Q. What was your business ?
A. I kept a restaurant.
Q. Where was that?
A. Right next to FordHs theatre.
Q. Were you in the restaurant at the time the murder was committed ?
A. I was.
Q. Did you know John Wilkes Booth ?
A. Yes, sir.
Q. Had you frequently seen him there, or otherwise ?
A. He used to come in there very often.
Q. You knew him well by sight ?
A. Yes, sir.
Q. Did he come in that evening ?
A. He came in that night.
Q. What did he do?
A. He walked up to the bar and called for some whiskey.
Q. What did you do ?
A. I gave it to him.
Q. State whether he was alone.
A.. He was.
Q. Did he drink it ?
A. Yes, sir.
Q. Then what did he do.
A. He called for some water. I did not give him any water when he called
for the whiskey. It is usual to give water, but I did not give it to him. He
called for water, and I gave it to him. He laid the money on the counter and
vent right out
Q. State how he appeared as to coolness or nervousness.
A. I did not see anything unusual in him at all.
Q. Nothing unusual in his dress ?
A. No, sir.
Q. He was dressed in his usual way — no disguise ?
A. No, sir; no disguise.
Q. How many minutes after he took that dnnk was it before yon heard the
President was assassinated ?
A. As near as I can come at it, it must have been from eight to ten minutes.
Q. Had you seen Booth often before ?
A. I used to see him almost every day.
Q. Who had you seen him with near the time of this occurrence ?
A. I could not exactly recollect. He used to come in with several gentlemen;
^metimes with one, and sometimes with another.
Q. I will call your attention to a particular time. Did you see him with any
Pcnon charged as one of the conspirators ?
L
158 TRIAL OF JOHN H. SUBBATT.-
A. I saw him two or three days before with Herold.
Q. Where was that ?
A. In the same place ; he came in there.
Q. State what occurred.
A. I could not exactly saj. I thiuk thej just came in — came to the bar and
fot a drink ; probably had a little conversation together, and went oat again,
could not particularly describe what passed there at all, not taking any par-
ticular notice.
Q. On the night of the murder did you see this same Herold come in?
A. No, sir ; 1 did not.
Q. On that night or the night previous did any one come in and inquire for
Booth?
A. No, sir ; that was in the afternoon. In the afternoon of the same day
Herold came in there and asked if I had seen John. I asked him what John.
He said John Wilkes Booth. I told him I had not seen him.
Q. What, then, did he say; did he ask you anything; and if so, what?
A. No, he simply came to the bar and inauired if «fohn had been there. I
asked him what John, and he said John Wilkes Booth. •
Q. Did he ask you whether he had been there that day or evening ?
A. No, sir; he just shut the door and went right out.
Q. And between the time Herold came in and the time Booth came in, jus
before the assassination, you had not seen either ?
A. No, sir.
Q. At what time in the afternoon of the 14th was it that Herold came in ?
A. I judge it must have been about 4 o'clock, as near as I can possibly think
of it.
Q. At the time Booth came in and took a drink, just before the assassination,
was there anything in his dress or appearance to awaken suspicion in your
mind?
A. No, sir; I did not take notice of anything unusual at all. He just came
in there and asked for a drink.
David C. Rbbd sworn and examined.
By Mr. Pibrrbpont:
Q. In what city do you live ?
A. In Washington city.
Q. How many years have you lived here ?
A. About thirty years.
Q. Do you know the prisoner at the bar by sight ? (prisoner made to stand
up.)
A. I do.
Q. How long have you known him by sight ?
A. Since quite a boy.
Q. Since you or he was quite a boy ?
A. Since he was quite a boy.
Q. Were you in the city of Washington on the day of the murder of the
President?
A. I was.
Q. Did you see the prisoner at the bar on that day in Washington ?
A. I think I did.
Q. Where did you see him?
A. I saw him on Pennsylvania avenue just below the National Hotel. 1
was standing as he passed just in front of where Mr. Steer keeps the sewing-
machine store.
Q. Which way was he going ?
A. From towards the Capitol.
TRIAL OF JOHN H. 8UBRATT. 159
Q. About what time of the day of the 14th was it?
A. It was about half past two, as near as I can recollect — between two and
half past two.
Q. Had 70U had a nodding acquaintance with him at all ?
A. I had ; I knew him, and I suppose he knew me. There was no intimate
acquaintance at all. I recognized him when I met him.
Q. As he passed did you recognize him, or he jou ?
(Question objected to by Mr. Bradley as leading.)
Q. As he passed, state what occurred.
A. There was a recognition; whether it was by him or me first, I am unable
to say.
Q. State whether it was by both.
A. 1 could not state positively whether I nodded first or he did ; we both
nodded.
Q. Will you state whether there was anything about his dress or equipments
on that occasion which attracted your attention ?
A. There was.
Q. Will you tell the jury what it was ?
A. What attracted me more particularly was his dress rather than his face.
I remarked his clothing very particularly.
Q. What was there about him that attracted your attention?
A. The appearance of the suit he wore — very genteel ; something like country
manufactured goods, but got up in a very elegant style, the coat, vest and panta-
loons.
Q. Was there any reason why you noticed his clothes? If so, state it to the
jary.
A. I cannot say there was anything particular, except his appearance so re-
markably genteel. I was rather struck with his appearance.
Q. State whether he was on foot or on horseback.
A. He was on foot.
Q. What was there on his feet ?
(Question objected to by Mr. Bradley as leading.
Objection overruled.)
A. I suppose he had boots or shoes. As he passed from me I turned and
looked at his feet. He had on a new pair of brass spurs.
Q. Now describe these spurs.
A. They were plain common brass spurs ; nothing very particular about them
except the rowel.
Q. What was there about the rowel ?
A. The rowel was very large and xery blue ; they evidently were bran new.
Q. What was upon his head ?
A. He had on a felt hat. It was not one of these very low-crowned hats ; it
liad a rather wide brim, a sort of drab-color felt hat.
Q. State whether the brim was a stiff or a limber one.
A. It was a stiff-brimmed hat.
Q. Which way did he go after passing you ?
A. He was passing up the avenue towards the Metropolitan Hotel from where
I was standing.
Q. State whether his gait was rapid or slow ?
A. It was not very rapid ; an ordinary pace in walking ; nothing very hasty.
Cross-examined :
By Mr. Bradlby:
Q. What was it that attracted your attention about his dress ; was it a par-
ticularly fine dress ?
A. It was a singular dress — one that I had never seen him wear before. It
160 TRIAL OF JOHN H. 8UBBATT.
was very genteel and very pretty. I noticed him coming up ; I stood facing
him as he passed; I was standing on an elevated position, probably eight inches
above the pavement.
Q. Was he in the habit of dressing genteelly or not ?
A. I had never seen him dressed in a suit of clothes anything like that before ;
I cannot say but what he was in the habit of dressing genteelly.
Q. How did he usually dress when you saw him ?
A. I cannot say that I could describe any particular dress. Sometimes I have
seen him in rather rough costume as he would come in from the country ; at
other times I have seen him dressed as genteely as anybody that walks the
street.
Q. How long had yon been in the habit of seeing him come in from the
country ?
A. Fifteen years, as nearly as I can recollect.
Q. What was he doing ; what was he engaged in ?
A. I have seen him here market days, I suppose, passing and repassing.
Q. Did he stand in market 1
A. I cannot say ; I never saw him standing in market.
Q. At what intervals of time were you in the habit of seeing him during
that fifteen years ?
A. I could not come at how often I had seen him in that fifteen years ; it
would be very hard for me to say.
Q. When did you see him last before you saw him on the 14th of April 1
A. I cannot exactly name the time — that is, give the date. It was about the
time of the opening of the race-course across the river beyond the Eastern
branch.
Q. Yon saw him then and there?
A. I saw him then and there.
Q. You mean the first opening ?
A. Yes, sir.
Q. For how long a time had you been accustomed to see him coming in from
the country ?
A. I could not give exact dates; I have seen him since he was quite a boy;
I have seen him here with his father.
Q. How often since he was grown ?
A. That I could not say positively, as to the number of times ; there was
nothing remarkable about it by which I could fix any particular number — ten,
twenty, fifty, or any other number.
Q. Did you ever meet with him anywhere except passing ?
A. I have met him at the livery stable, where he stood talking.
Q. What livery stable ?
A. Pumphrey's ; they used to put up there, but subsequently changed to the
brick stable across the way.
Q. When was that ; how long before this event ?
A. It was a considerable time before the death of his father.
Q. Do you remember when his father died ?
A. I think his father died some time in 1S63 — somewhere about that ueigb-
borhood.
Q. Four years ago ?
A. I think he has been dead near about that time.
Q. Were you ever at his father's house ?
A. Yes, sir.
Q. How long ago was that ?
A. In 1851.
Q. Sixteen years ago ; how large was John Surratt at that time.
A. He was a little chunk of a boy, probably so high. (Three feet)
TRIAL OF JOHN U. 8UBRATT. 161
Q. How often were you at their house ?
A. I was there on three occasions.
Q. In what year ?
A. During the fall of 1851.
Q. How often since then ?
A. I have not heen there since.
Q. Where did you meet him at any time between then and the fall before
the death of Mr. Lincoln ?
A. I have seen him in the city.
Q. Where?
A. As I have said, at the livery stable, and I have soeif him on the street.
Q. Did you ever talk with him at the livery stable ?
A. That I cannot say positively ; whether I ever entered into conversation
with him more than merely speaking.
Q. Do you recollect ever to have said that he had been in your room since
you knew him f
A. I said I thought he had, but I was mistaken.
Q. Have you not said you have seen him in your room frequently ?
A. No, sir.
Q. Do you recollect telling any citizen of your acquaintance that the place
where you met him at the time you have mentioned on the 14th of April was
further up the avenue, above Gth street 1
A. No, sir; I never said so.
Q. Do you recollect having said to any acquaintance of yours what his age
was or his personal appearance ?
A. I described his personal appearance.
Q. With any citizen, in conversation, do you recollect saying that he was a
man about 35 years old ?
A. From 30 to 35 years old I supposed he might be.
Q. You say your attention was not particularly drawn to Surratt's face at
that time ; can you state whether he had any beard or not ?
A. I cannot say positively whether he had, or not ; if he had, it was so
flight as to be scarcely perceivable.
Q. Do yon mean so light in color or in growth ?
A. So light in color and in growth.
Q. So that if he had a beard you do not recollect it ?
A. I do not recollect any at all.
Q. What livery stable did you go to after his father's death ?
A. To the brick stable belonging to Marshall Brown. His father changed
from Pumphrey's to that before his death.
Q. Who kept that stable then ?
A, Levi Pumphrey.
Q. Do you mean the stable at the comer of Gth and C streets ?
A. Yes, sir ; at the comer of Gth and G streets.
Q. Where did younff Surratt put up his horse after his father's death ?
A. Whether he put his horse there or not I am not sure. I have seen him
at the stable, but I have no recollection of seeing him stop there on horseback
fince the death of his father.
Q. Do you recollect where Surratt the elder lived when you visited him ?
A. Away down here in Maryland.
Q. In what is called Surrattsville?
I A. Ii was not called Surrattsville then ; it was called John Surratt's.
I Q' What was there at the place called John Surratt's ?
I A. He kept a hotel and a post office.
I Mr. Bradley desired to have the privilege of recalling Mr. Reed for cross-
162 TRIAL OF JOHN H. 8UHBATT.
examination at some future time, after the defence should have consulted with a
witness now out of the city.
Mr. Garrington objected to this course, as being without precedent, and held
that there was no rule of court that justified such a course.
Mr. Bradley argued that it was a matter within the sound discretion of the
court. The defence expected to prove that Mr. Reed had made statements cot
of court contradictory to what had been testified to in court. The defence,
however, did not know that Mr. Reed was to be called, and they could not put
the question in form until the absent witness referred to was here.
The decision of the question was reserved until to-morrow morning.
Su»AN Ann Jackson (colored) sworn and examined.
By Mr. Pierrepont :
Q. How long ago were you married ?
A. I have been married two years this May.
Q. What was your name before marriage?
A. Susan Ann Mahoney.
. Q. Were you married before or after the assassination of the President ?
A. I was married two weeks after it.
Q. You remember that event do you t
A. Yes, sir.
Q. Do you remember where you were living iu the month of March, or the
latter part of March, of the year in which the President was assassinated, before
you were married ?
A. I was living at Mrs. Surratt's.
Q. On what street was Mrs. Surratt's ?
A. On H street, between 6th and 7th.
Q. And as you go up that way east, on which side of the street is it?
A. On the right-hand side.
Q. Do you remember the number ?
A. No, sir, I do not.
Q. Do you remember about the entrance or stoop of the house, how that
was 1
A. There were high steps run up in front.
Q. State to the jury about how nigh, whether they went up to the storj or
not.
A. It was up to the second story, pretty near the windows.
Q. Then it was very high, was it ?
A. Yes, sir.
Q. Where did you go from when you went to Mrs. Surratt's in March— from
whose service did you go ?
A. Mrs. Brown's.
Q. Where did Mrs. Brown live ?
A. She lived on the island.
Q. Do you know Mrs. Brown's first name, or her husband's name ?
A. No, sir, I do not. I did not stay there very long.
Q. Do you remember the Good Friday in the April following the March
when you went to Mrs. Surratt's.
A. No, sir; I don't remember the very day I went there.
Q. Do you remember the Good Friday following that day, or any circum-
stances about that Good Friday in April ?
A. Yes, sir.
Q. Do you know whether Mrs. Surratt went away that day ?
A. Yes. She went down in the country on Good Friday, between 11 and 12
o'clock.
Q. In what did she go ?
TRIAL OP JOHN H. 8URRATT. 163
A. She went in a buggy.
Q. Did you ace the man who went with her ?
A. Mr. Weichman.
Q. Did you see him ?
A. Yes, sir. He boarded there at the same time.
Q^ Yon would know him now, if you were to see him ?
A. Yes, sir.
Q. Did you see Mr. Weichman when he came back with Mrs. Surratt
A. Yes, sir ; I saw him when he came back with Mrs. Surratt.
Q. About what time in the evening did Mrs. Surratt return 1
A. As near as I can recollect, it was between 8 and 9 o'clock.
Q. After that, on that evening, will you tell us whether you saw the prisoner
here?
Witness. That one sitting over there ? (pointing to the prisoner.) .
Mr. PiERRBPONT. Yes.
A. Yes, sir; I have seen him in the dining-room.
Q. Who was with him ?
A. His mother was with him.
Q. What did his mother say to you ?
A. I do not know.
Q. Had you ever seen him before ?
A. No, sir ; I had never seen him before.
Q. How long had you lived in the house ?
A. I had been there three weeks.
Q. What did his mother say ?
A. She told me that was her son.
Q. What else did she say to him, or about him ?
A. She did not say anything else. When I was gathering up some clothes to
put in the wash, I asked if they were for Mr. Weichman, and she said no, they
were for her son.
Q. Did she say anything about who he looked like ?
A. She asked me did he not look like his sister Annie.
Q. What did you say to that ?
A. I said I did not know ; I did not take good notice of him to see who he
favored.
Q. Who was it that asked you if he did not look like his sister Annie 1
A. Mrs. Surratt.
Q. Did you bring anything into the room you have spoken of where she was
Bitting with her son ?
A. I had just brought a pot of tea into the room.
Q. Who was in the room when yon brought in the pot of tea ?
A. Not any one, except her son.
Q. Do jrou see any one now who she told you then was her son ?
A. Yes, sir ; I am looking at him now.
Q. State whether that is the one.
(The prisoner made to stand up.)
A. That is the man, sir.
Q. After you took in the pot of tea, what did you do ?
A. Just went out again.
Q. Did you return again ?
A. No, sir ; I did not return in the room any more.
Q. Will yon tell us, as near as you can, about what time in the evening you
took in the pot of tea ?
A. As near as I can come at it, she came home between 8 and 9 o'clock.
Well, when she came home and came to the dining-room, I carried in supper for
164 TRIAL OF JOHN n. SURBATT.
Mr. Weichman, the man who boarded there. After he went out she called me
and asked me for a second plate, cup, and saucer. I carried them to her.
Q. And then jou found this man there ?
A. Yes, sir.
Q. Did you know his sister Annie ?
A. Yes, sir ; she lived there.
Q. She was in the house ?
A. Yes, sir.
Cross-examined :
By Mr. Bradley :
Q. Were you ever examined as a witness about this matter before ?
A. Yes, sir ; Mr. Omit examined me — or Captain Orfutt. I am not sore
about the name.
Q. Where were you examined ?
A. He carried me down to his office — I forget where it was — in the night.
Q. When was that?
A. Monday night after the assassination happened.
Q. They took you down to a guard-house, or some place I
A. They took me to the office.
Q. Do you recollect where it was ?
A. No, sir; I had never been there before. I do not recollect where it was.
I think it was somewhere near the Treasury.
Q. Who took you there — do you remember ?
A. No, sir ; I went in a hack.
Q. You were examined there ?
A. Yes, sir.
Q. Did they write down your examination ?
A. Yes, sir.
Q. You were not examined afterwards ?
A. No, sir ; not then, I was not.
Q. Were you at any time after this ?
A. Yes, sir ; since then I have been down to what they call the War De-
partment ; in the course of last week, I think it was.
Q. How long after the assassination ?
A. It was just last week I was can ied down to the War Department. Mr.
Kelly carried me.
Q. And you were examined there ?
A. Yes, sir.
Q. Do you remember who examined you there ?
' A. No, sir; I do not know tiie gentleman's name.
Q. Was what you stated then written down ?
A. Yes, sir ; it was written down.
Q. When you were examined before General Augur, if that was the place,
did you then make the same statement you do now ?
A. Yes, sir.
Q. You stated that Mrs. SuiTatt's son was there that night ?
A. Yes, sir.
Q. What became of him 1
A. I do not know, indeed ; I did not see any more of him.
Q. You saw him about 9, or half past 9 ?
A. It was between 8 and 9 when she came — after Mr. Weichman and she
took tea, she called me to bring a pot of tea to this gentleman.
Q. Was Mr. Weichman in there also ?
A. No, sir ; there was not any one there at all ; he was gone out.
Q. Did he come into the same room ?
TRIAL OP JOHN H. 8URRATT. 165
A. No, sir ; he was not in there with Mr. Weichman.
Q. Who came in from the country with Mrs. Surratt ?
A. Mr. Weichman.
Q. Where did he go then ?
A. I suppose he went up stairs to hed, or somewhere.
Q. Where was this gentleman then ?
A. I do not know.
C^ You had seen him before that 7
A. No, sir ; I had never seen him until that night.
Q- And when you went into the parlor you found him sitting in the dining-
»m. and Mrs. Surratt told you it was her son ?
A. Yes, sir.
5. And this is the very same gentleman ?
A. Yes, sir ; this is the very same gentleman who was in there with Mrs.
rratt.
3. And that you told to these gentlemen and they wrote it down the Monday
irwards ?
A. Yes, sir.
5. And you never saw him before then, or since ?
A. No, sir ; never before nor since, until one day last week when he was
ught up here.
2* Ana you are sure he is the very same man ?
i. He is the very same man she told me was her son.
^, And the very same man you saw. at her house ?
k. The very same man I saw the night after she came in from the country.
I. The night of the assassination ?
^. Yes, sir ; the same night.
j. Yon say you had been living there three weeks ; was it just three weeks ?
1. Yes, sir ; three w^eks on Monday.
j. Now if you can go back a little, are you quite sure the gentleman you saw
re, who she told you was her son, was not there on Monday, ten days before
assassination of the President ?
k.. I never saw that gentleman she called her son until Friday night
i. You are sure it was Friday night 1
V. Yes, sir ; it was the Friday night she came from the country.
2. And that was the night the President was assassinated ?
L Yes, sir ; it was the very night she came from the country ; it was the
day night before Easter Saturday.
^ Do you not recollect the night the President was assassinated ?
L It was Friday night.
2- Was that the same night you saw this gentleman there ?
L It was the very night I saw this gentleman there.
J. You must have been there the night of the 3d April, the Monday night of
week before the President was assassinated ?
i. I was there a week in March.
). Did you not see him there on that Monday night the week before the
»ident was asassinated ?
i. No, sir; not as I know of, I did not see him there the week before ; I saw
I on Friday night.
By Mr. Pikrrepont :
I, Yon stated that you went into the dining-room, aud that when you were
here Mrs. Surratt told you the person there was her son ; did you go there
ronr own accord, or did she call you in ?
.. She called me in to bring a clean plate and cup ; yes, sir.
166 TRIAL OF JOHN H SUBRATT.
James Sangstbh sworn and examined.
By Mr. Pibhrbpont :
If your honor please, in consequence of this witness being out of the jurisdic-
tion of the United States, we are obliged to go a little out of our order so that
he may return ; I will therefore examine him now.
Q. Where do you reside ?
A. Montreal, Canada.
Q. Where did you reside in April, 1865 ?
A. Montreal.
Q. What was then and now your position ?
A. Book-keeper at St. Lawrence Hall.
Q. Will you take this hook and state to the court and jury what it is ?
A. That is an arrival book.
Q. Take these and state what they are.
A. One contains a copy of the bills rendered, and the other is a leaf firom oar
departure book, in whicn is written the number of the room the parties occupied,
when they go away, or by what train or boat.
Q. Explain what you mean by arrival book.
A. Parties come there and raster their names before procuring rooms^
Q. Will you state how you know when a party leaves your house, what train
he will take, and in what direction ?
A. The entry is made in this departure book of the train or boat of the party
going away.
Q. Now turn to this arrival book, or register, as we are accustomed to call it,
and will call it, to April G, 1865, and state whether you see there the name of
John Harrison?
A. Yes, sir.
Q. Please now show the book to the court and then the jury, (entry pointed
out by witness to court and jury.) Now turn to the nextr arrival with the same
name and tell us what day of April it is under ?
A. The 18th.
Q. Now can you tell us whether the last is the same handwriting as the first!
A. Yes, sir.
Q. Will you tell us from that register at what time in the day that arrival
was?
A. 12.30 noon.
Q. What was the time of the first arrival ?
A. 10.30 a. m.
Q. Will you now show these names to the jury ? (Register exhibited to jory
and entries pointed out.) Now will you tell the court and jury, after the arrival
on the 6th, when was the departure of the man who entered his name as John
Harrison; tell us when he paid his bill, when he departed, and by what train t
A. He paid his bill on the 10th, but did not go away.
Q. When did he go away ?
A. He went away on the 12th.
Q. How do you know he did not go away on the 10th 1
A. It is written opposite the number of the room, " Not gone."
Q. How do you know he went away on the 12th ?
A. His bill was paid on the 12th for two days.
Q. Turn and see if there is anything there that proves that.
A. The name is entered in this bill book, with the amount paid on the lOtli
four days ; then it is on this departure book that he staid two days, and went
away on the 12th.
Q. Which way did he go ?
A. On the New Yoik train.
left the hotel instantly, did he ?
left it instantly.
examined :
J Mr. Bhadlby, jr. :
1 Bay he left the hotel instantly on the 18th. What is the entry on the
ere is no entry excepting the name on the register,
may have been there or somewhere else ?
may have been ; he paid no bill,
d had DO room assigned him?
I ; he had a room assigned to him.
d he may have been there without your knowing it ?
may possibly have been there.
you identify this gentleman at the hotel as the prisoner at the bar ?
, sir ; I cannot say that I identify him.
ve you ever seen the prisoner at the bar before you came here ?
annot say that.
e there any circumstances that would recall this man to you ?
e circumstances were, that after the death of Lincoln parties came there
for him, and from the description they gave of his dress I remembered
irty there answering to that description,
lat was this dress ?
I wore what is called a Garibaldi jacket,
y the Court :
lat is a Garibaldi jacket ?
is a kind of straight coat, or jacket, with a belt of the same material.
y Mr. Bradlby, jr. :
you recollect anything else peculiar about his dress ?
remember that he was tall — nothing more than that. At the time of
[uiries I remembered that such a party had been in the house. I do
nber now his appearance except that he wore a Garibaldi jacket.
168 TRIAL OF JOHN H. 8URRATT
Q. Was the hat hard or soft 1
A. My impreseion is, it was a soft hat.
By Mr. Pierrepont :
Q. You saw the prisoner standing up just now. What do you say as to height
compared with this man ?
A. I do not rememher much about it.
Q. Do you remember what description was given of this John Harrison by
the parties who came to inquire ?
A. I do not remember exactly what the description was. I remember they
gave such a description that I knew the party had been in the house ; what it
was I do not recollect.
Mr. Pie RUB PONT. I am informed by counsel upon the other side that they
are going to bring in a dress they claim to correspond to that of this John Har-
rison ; I will not, therefore, ask any further question at present.
Mr. Bradley. I will say that we had sent a subpoena for Mr. Sangsterfor
the purpose of proving these facts. I state it in order to ascertain how far it
may be taken as a stipulation that the prisoner, John H. Surratt, on the 6th of
April, 1865, arrived at that hotel, and entered his name on the register as John
Harrison ; that he left there on the 12th of April, returned on the 18th, and
again registered his name as John Harrison.
Mr. Pierrepont. And that these two entries are in his handwriting.
Mr. Bradley. That he registered that identical name. We wish to exhibit to
Mr. Sangster not the dress worn by the prisoner, but a dress of the same kind.
Mr. Pierrepont. That will certainly save us the necessity of taking a veiy
considerable amount of evidence.
The dress referred to was here brought into court, and the question asked
by Mr. Bradley, jr., " Is that the style of garment worn by the person entering
his name as John Harrison on the occasion referred to ?*' Ans. " That •is the
style of garment."
The court took a recess until to-morrow at 10 a. m.
Wednesday, June 19, 1867.
The Court met at 10 a. m.
The court said that on Monday a request had been made by the counsel
for the defence to have the court direct the prosecuting attorneys to furnish
them with a list of the witnesses who were to be examined on the part of the
government. He had carefully considered the subject, and had come to the
conclusion that he had no power to make such an order, and that such an order
would look like an infringement on the rights of the prosecution in thus com-
pelling them to make known and lay open their case. There were variooB rea-
sons why the order should not be made. It would gratify him to accommodate
the counsel in this respect, if he could do so consistently with his view of the
law.
In regard to the subject proposed yesterday, relative to the defence being
allowed the privilege of retaining witnesses and cross-examining them at any
time during the trial, he would say that he had never known that coarse of
practice to be allowed, and could not see any good ground for permitting it in
this case. The same principle shoald apply in this case as in all others, which
was that the cross-examination be restricted to the subject-matter brought oot
on the examination in chief. He then read the rule as set forth by the Supreme
Court, to the effect that the defence had no right to cross-examine except as to
matters brought out on the examination in chief.
Mr. Bradley said they were advertised of a list of seventy witnesses which
the prosecution had, but they knew nothing as to what these witnesses would
testify to, and could not therefore contradict them, and they had acooidin^J
asked that the cross-examination of each witness be postponed.
TRIAL OP JOHN H. 8URBATT. 169
Carbol Hobart, conductor* sworn and examined.
B7 Mr. PiBRREPONT :
Q. What is your present occupation ?
A. I am running the train on the line of the Vermont Gentral railroad.
Ci- Will you tell the jury from what point to what point that train runs ?
A. I run it from White River Junction to St. Albans. The train runs to
mtreal
(J. Where is this White River Junction T
A. It is on the line of the Vermont Gentral railroad, at the terminus of the
rthem New Hampshire railroad. It U on a direct route from Boston to
mtreal.
Q. State how far this is from Burlington.
A. One hundred and three miles.
Q. Does the road from Burlington unite with this road of yours ?
A. Yes, sir. It is the Vermont Gentral and the Vermont and Ganada prop.
ly. We run out of the Vermont and Ganada road at Essex Junction. The
^raiont and Ganada starts from Essex Junction, and runs to Rouse's Point.
fie Vermont Gentral and the Vermont and Ganada is a consolidated concern.
Q. In starting from Burlington, Vermont, the road goes to Rouse's Point ?
A. Yes, sir. I go twenty-four miles over the Vermont and Ganada road to
) to St Albans. I remain there one da^, and the next morning I start and
0 twenty-four miles to Rouse's Point That night I return and go back to
Hiile River Junction, the whole length of the route.
Q. So that, then, the Burlington train comes up and meets your train ?
A Yes, sir ; that comes up to Essex Junction, and the passengers from that
nio get on to mine. I stay that day and that night at St. Albans.
Q. Do you take the Burlington passengers at Essex Junction 1
A. I do.
Q. From there you take them to St. Albans ?
L Yes, sir.
Q. At what time do you get to St. Albans, if you run regularly ?
A. I was due there at 6 o'clock in the morning.
Q. Between the 10th day of April, 1865, and the 20th day of April, 1865,
tate whether you were the conductor on this same road ?
A. I was, and have continued to be ever since.
Q. Do you remember about what time in April, 1865, the first boat came up
le lake, that left passengers at Burlington ?
A. I got the passengers from the first trip up the lake by the boat on Tues-
17 morning, in April.
Q. Have you any memorandum of what kind of a night it was prior to this
oming that you took these passengers ; I mean as to whether it was stormy
• otherwise ?
A I think it was a clear night, but I am not sure.
Q. At what time in the morning or night was it that your train started?
A. I sUirted from White River Junction at 11.55 at night; I cannot say
father we were then on time or not, but that was the time of starting.
Q. Where did you go ?
A. Directly to St. Albans.
(The prisoner was here requested to stand up, that the witness might see him.
He dW 80.)
Q. 'Will you tell the jury what occurred on the train that night that was
peculiar]
^ A, I arrivod at Essex Junction at 5 o'clock iu the morning — Tuesday moru-
la?- I let\ Essex Junction with the passengers from Burlington and the boat
12
170 TRIAL OP JOHN H. 8UBBATT.
on Lake Champlain. As I went through the train, I found between the passen-
ger car and the sleeping car two men standing on the platform ; thej were on
the platform of the passenger car, one on each side of the door. I spoke to
these men, and asked them for their tickets. They said thej had none, and
that thej had no money ; that thej had been unfortunate.
Q. Please describe these men ?
A. One of them was tall ; he was about my height as he stood up in the car ;
he was rather slim ; had on a scull cap-— one of these close-fitting caps — and
short coat. His vest was opened down low, and his scarf came over under his
collar and stuck in his vest. The other man was a short, thick-set man, of
sandy complexion, with whiskers around his &ce, and had a slouched hat on.
Q. Of what color were his whiskers ]
A. Sandy, I think.
Q. Was he a rough or genteel looking man 1
A. He was a rough-looking man.
Q. How was he dressed 1
A. I cannot state about his dress.
Q. With whom was the conversation ?
A. With the tall man.
Q. Stale what the conversation was ?
A. I told him to come into the car, and put my hand on his shoulder. He
came in. He said that three of them had been to New York ; they were Ca-
nadians, but had been at work in New York ; that they had received some
money two nights before — I won't be positive about the time — and that a third
party who had been with them got up in the ni^ht, took all the money thej
had, and left ; that he had left them without anything — in a destitute condition.
Q. What were they trying to do, did he say ?
A. He said they must go to Canada ; that they wanted to get home ; that
their friends livecl in Canada, and that when they got home they would get
plenty of money, and would remit the amount of fare to me.
Q. What further?
A. 1 told them that I could not carry them. I spoke to them of the necessity
of having money if they were going to travel, and that I could not carry them
throueh free. They expressed themselves as very anxious to get through. I
told them that 1 should leave them at the next station — Milton — between Essex
Junction and St. Albans. I was busy when I got there with the train, and so
forgot them. I went through the train again after leaving Milton, and foond
them in the rear end of the car. I trif»d them again to see if they had not some
money. They said they had none, but that they must go to St Albans ; that
when they got there they could foot it. They inquired of me how far it was to
Franklin ; that they were going through the country. I asked them how they
were going to get there ? They said they were going afoot.
Q. State where Franklin is ?
A. Franklin lies northwest of St. Albans fourteen miles ; I think the distance
is about four miles from the line — the Canada line.
Q. When you asked them how they were going to get to Franklin, what did
they say ?
A. They said that they would have to go afoot ; that they had no money to
pay their fare on the stage ; that if I would carry them to St. Albans they
would try and get home, or where their friends were.
Q. Who did this talking?
A. The tall man.
Q. In the progress of this talk, or in the beginning of it, state what there
was, if anythmg, peculiar about their dialect.
A. This tall man tried to use broken English, as if he were a Canuck, but
I
J
TRUL OP JOHN H. SURRATT. 171
ally he would get a little in earnest for fear he was to be put off, and
would drop the Canuck and speak good sanare English,
liat did you discover as to his square English finally?
tiat was what aroused my suspicions that things were not all right; that
re travelling incog,, and I urged the matter more than I would if they
1 really poor people and I had had strong proof of that fact.
id anything happen in relation to the position of the tall man*s hands
If so, what ?
is hands were not like those of a laboring man ; were not like those of a
Q who had been used to hard labor. They were white and delicate.
>a took them to St. Albans ?
did.
lien they got to St. Albans what did they do 1
bey went out into the yard, on to Lake street I went into the general,
fice to attend to my business,
d you see them any more that day }
will not be positive. I cannot say whether I did or not.
you did, it was soon after, I suppose ?
», sir ; after I had done my work — about ten minutes, perhi^ps*
m you tell us the time the train went on from St. Albans to Montreal
1 got there ? or what time it would be due in Montreal ?
ae there at 9.45 a. m.
lat same morning ]
», sir.
t Montreal ?
», sir.
&ve you seen anybody in court to-day that looks like the tall man that
I
le man that stood up before me resembles the man that I saw very
[ should not recognize his face. He had at that time a moustache, with
Lers on his chin. He had a cap on.
)w did he wear his skull cap ?
was drawn down over his forehead, in the usual way.
lything on one side at all ?
)t that I noticed,
d you hear anything soon after that about a handkerchief at St.
BRRICK. That is hardly admissible.
IBRRBPONT. I mean a handkerchief with Surratt's mark on it — the
"J. H. Surratt."
radlby. That doesn't make any difference.
OURT. Not anything that he heard. If he saw anything of the hand-
it would be proper for him to state it, but not what he heard.
IBRRBPONT. I do uot bclicve that he did see it. That's all we wish
witness.
I the cross-examination was proceeded with the following agreement was
nto by counsel on either side :
agree that the time-tables of any railroad in the United States, duly
from the office of the company, for the month of April, 1865, and cou-
ith the routes from the city of Washington to Canada, and from Detroit
ec, may be put in evidence, and shall be received without objection ; and».
ibat these time-tables shall be produced on cither side before the close
:a8e, in the regular process of the examination.''
172 TRIAL OP JOHN H 8URBATT.
Crose-examination :
By Mr. Bradlby :
Q. Have you any time-tables abowing wben tbe first steamboat went up the
lake to Burlington from White Hall ]
A. I have no means of knowing tbe time tbat it arrived at Burlington — ^that
is, the day of the month. I know it was on a Tuesday morning that I took tbe
passengers from the first trip of the boat, because her trips are only IHiesdays
and Fridays.
Q. Can you ascertain the day of the month, when you return home ?
A. I cannot. There is no way that I can get the date, sure. The accounts
go in regularly every trip. There is no difference in them ; they are all alike.
I could send you the account for the month ; that is all.
Q. You do not know, as I understand from your testimony, whether these
parties came by the steamboat to Burlington, or not ?
A. They told me that they lay in the depot at Burlington all night.
Q. You started the next morning at 5.55 t
A. No, sir.
Q. What train brought them to you ?
A. It is a short train. There is a branch road from Burlington to Essex
Junction. I think there are seven miles of road there.
Q. They arrived, then, at Essex Junction before 5 55 in the morning ?
A. I think, at that season, 5 o'clock in the morning was the time for leaving
Essex. I left White Hall Junction at 11.55; arrived at Essex Junction at o,
and left there immediately, as soon as 1 could get the passengers removed and
take on baggage, 6zc. ; and then reached St. Albans, twenty -five miles further
north, at G o'clock.
Q. How far beyond St. Albans did you run ?
A. I go twenty-four miles to Rouse's Point the next morning.
Q. From where?
A. From St. Albans.
Q. What train took up your passengers at St. Albans, and went on* im-
mediately ?
A. It was the morning mail train out of St. Albans, going west.
Q. To Ogdcnsburg and Montreal 1
A. Yes, sir. Tbe passengers for Ogdensburg and Montreal went to Rouse's
Point on the train, and then they separated.
Q. What interval was there between your arrival at St. Albans and the de-
parture of the train for Rouse's Point ?
A. 1 think the time allowed for breakfast at that season was twenty or thirty
minutes. At Rouse's Point there are two trains running northwest — one to
Ogdensburg and the other to Montreal.
Q. What time does that train to Montreal arrive in Montreal t
A. At 9.45, I think.
Q. I understand you ran up to Rouse's Point in the morning after your
arrival at St. Albans, and made a long stay there ?
A. Yes, sir ; I think from 7.15 a. m. to 5.45 in the evening. I took my
departure for White River Junction at 5.45 in the evening.
Q. At what time does the afternoon train which you took at Rouse's Point
leave Montreal 1
A. I think, at that season, it left at 3 o'clock in the afternoon.
Q. Did the passengers, by the Montreal train reach St. Albans in time to
connect with you at 5.45 ?
A. They came back to Rouse's Point at 5.30, I think — giving me fifteen
minutes in which to change passengers, baggage, &c.
Q. That is the connecting train 1
A. Yes, sir.
TBIAL OF JOHN H. 8UBRATT. 173
Q. Wliat time do yon reach White River Junctioa ?!
A. 1 reached White River Jnnction, at that season, at 1 o'clock a. m. — in the
night.
Q. What train, coming south, takes up your passengers at White River
Junction ]
A. At that time it was a train going directly through Springfield. We have
two roads to New York— one by way of Springfield, and the other by way of
Albany.
Q. Taking the New York road first, what time did the train leave which takes
your passengers ? What time does that train leave for Albany ?
A. It leaves for Essex Junction at 8.40, 1 think, in the evening, going to
Barlington and Albany. Left White River Junction at that time at 1.10, I
think, for Springfield.
Q. The train from New York, then, leaves at Essex Junction ?
A . Yes, sir ; for New York by way of Troy and Albany.
Q. Is there any other route except the Springfield route ?
A. No, sir ; except by way of the boats from Rouse's Point. The boats run
from Lake Ghamplain to White Hall, leaving Rouse's Point at 5.45.
Q. Do you recollect whether the tall one of the two persons who went on that
trip ¥nth you had any " goatee," as it is called ?
A. I think not, though I would not be sure.
Q. Was not his face quite clean ?
A. Otherwise than a slight moustache.
Q. Do you recollect his eyes at all ?
A. I could not state positively anything about them.
Q. Did not his skin strike you as being quite fair?
A. No, sir ; I should not think he looked very fair. He was poorly clad and
looked as if he had been without his sleep for some time.
Q. The taller one of the two 1
A. Yes, sir ; he did all the talking that was done. He looked rather rusty —
not particularly fair.
Q. Do you recollect whether or not, in the month of April, especially the
April of 1865, the route from Albany to Burlington was very irregular ?
A. The boats were irregular in their arrivals at White Hall. They were not
80 irregular out of Burlington.
Q. Did they fail to make their connection with you 1
A. Yes, sir ; they did on the beginning of navigation.
Q. That is a daily route, is it 1
A. Yes, sir.
Q. Did you make more than a trip a day ?
A. No, sir. It takes the boats some twelve or fourteen hours to make the
passage over the lake. They go up one day and come down the next.
Q. Do you know whether that same route goes to Rutland or not ?
A. 0, yes, sir ; we connect with a train through to Rutland, at Saratoga,
Troy, and Albany.
Q. Does the boat also go to Rutland ?
A. No, sir ; it goes to White Hall.
Q. Can you state whether or not the Troy train to Rutland connects with
any train immediately-7-morning train ?
A. Yes, sir ; I think that train connected with us as it does now. I take the
sleeping car that comes from Troy on at Essex Junction.
Q. At that time, according to your recollection, the morning passengers from
Troy did not lie over at Rutland for the evening train ?
A. I think I received those morning paf^sengers from Troy and Albany, with
^e sleeping car, on my train at Essex.
Q. Has the arrangement been altered since ?
174 TRIAL OF JOHN H. 8URRATT.
A. No, sir.
Q. If a passenger leave Troy in the morning, going north, does the train go
through, or does he lie over in Rutland till the night train passes and then
goes on ?
A. No, sir: that train connects with the Rutland train. Some few weeks
ago they did not run in connection with our express train. This irregularity,
however, continued but a short time. It was caused by some miBunderstanding
among the managers of the road.
Re-examination by Mr. Pibrrbpont:
Q. I understood you to state, that in the beginning of the navigation the
boats were sometimes irregular?
A. Yes, sir.
Q. I understand you to state, also, that this train that you speak of contained
the first boat-load of the season ; am I right?
A. Yes, sir ; the first boat-load on the lake for that season.
Q. I understand you to state that, after you arrived at St. Albans, you never
saw these two men again ?
A. I am not positive ; I was questioned by a gentleman as I was passing to
my boarding place.
(Mr. Merrick objected. Objection sustained.)
Mr. Bradley desiring some rule laid down as to the re-examination of wit-
nesses, after the cross-examination had been concluded,
The Court said: The rule will be, that wherever there is any doubt on the
part of one of the counsel as to what the answer of a witness on cross-examina-
tion has been, he may repeat the question to the witness, and ascertain from him
what answer he had given.
Charles H. Blin\, clerk, Weldou House, St. Albans, Vermont; residence,
St. Albans, Vermont.
By Mr. Pibrrbpont:
Q. What was your employment, and where were you employed, between the
10th and the 15th of April, 1865?
A. Between the 10th and the 15th of April, 1865, 1 was employed as night
watchman in the passenger depot of the Vermont Central depot in Burlington,
Vermont.
Q. Do you remember when the first passenger boat of that season landed its
passengers at Burlington that season ?
A. The first trip made by the boat that season was the 17th of April.
Q. What day of the week ?
A. Monday.
Q. Can you tell whether it arrived in time for the passengers to take the
train ?
A. It was four hours late
Q. At what time did it arrive ?
A. About twelve o'clock in the night.
Q. Were you on watch that night in the depot ?
A. Yes, sir.
Q. Did you see two men in that depot ? If so, tell us about them.
A. There were two men who came in from the boat; one was a tall man,«Dfl
the other shorter. They requested permission to sleep in the depot until the
train left for Montreal.
Q. At what time did the train .leave ?
A. The train left at 4.20 the next morning.
Q. Where did that boat come from ?
TRUL OF JOHN H. SURBATT. 175
A. It camo from White Hall, and connects with the cars from ^iew York
city. It runs from White Hall to Rouse's Point, on the lake.
Q. State what arrangement, if any, was made between joa and them, about
sleepinf^ there.
A. They requested permission to sleep on the benches in the depot.
Q Which one made the request 1
A. The taller gentleman ; he did all the talking.
Q. What did he say 1
A . He wished to know if he could sleep there. People very often come along
in that way, when the cars from the Rutland road were late.
Q. I am merely asking what he said ?
A. He wished to know if he could sleep there. I asked him if he did not
wieh to go to a hotel. He said he thought not ; he was going to Montreal on
the early train, and would like to sleep there in the depot.
Q. Did you call him 1
A. Yes, sir, in time for the train.
Q. At what time did you call him 1
A. I should think 4 o'clock.
Q. In the morning ?
A. Yes, sir.
Q. That was on Tuesday?
A. Yes, sir, that was on Tuesday morning, the 18th.
Q. After he went out did you see anything where he had been lying ?
A. I did not.
Q. Any article ?
A. I did not, until daylight.
Q. Did you at daylight 1
A Yes, sir.
Q. Have you it there ?
A. I have, or something that resembles it very much.
Q. Just look at it and state if yon recognize it as the same.
A. (After examining it.) I do recognize that as the same handkerchief.
Q. Where, in relation to where the tall man slept, was that 1
A. That was near the seat, on the floor, where his head lay.
(The handkerchief was here shown to the jury.)
Q. Is there any navne on it ?
A Yes, sir ; " J. H. Surratt, 2."
Mr. Bradley :
The name is all spelt right ; but we cannot admit the handwriting. If it is
tis, you will have to prove it.
The Court :
Q. When you picked it up was that name on it ?
A. It was.
By Mr. Pierrbpont :
Q. What did you do with the handkerchief after you picked it up ?
A 1 did not discover the name until three hours afterwards.
Q. What did you do with it after you discovered the name ?
A. I gave it to my mother to be washed.
Q. How soon after you discovered the name did you make known the fact
^liat you did discover this handkerchief with the name on it ?
A. I made it known during the day, I presume.
Q. To whom did you make it known 7
A. I showed it first to the agent of the railroad company at Burlington.
Q. Do you know whether he communicated the fact to St. Albans ?
176 TRIAL OF JOHN H. SUBBATT.
A. I scarcely think he did.
Q. I say, do yon know ?
A. I do not.
Q. Did you see either of these men after they left 1
A. I did not.
SciPiANO Grillo, restaurant keeper and musician, residence navy yard,
sworn and examined.
By Mr. Pibrrepont:
Q. Where were you living in the month of April, 1865 ?
A. My residence was at the navy yard.
Q. What business had you here in the city ?
A. I kept a restaurant under Ford's theatre.
Q. Did you know John Wilkes Booth by sight 1
A. Yes, sir.
Q. When did you first see him ?
A. I knew him for five or six years before the assassination. I have been
in the profession myself.
Q. As an actor ?
A. No, sir, as a musician.
Q. Did you know David Herold, one of those tried for conspiracy ?
A. Yes, sir.
Q. Did you know George Atzerodt ?
A. By sight.
Q. When did you see Herold last, before the assassination ?
A. I saw him near about 5 o'clock.
Q. On the same day 1
A. Yes, sir.
Q. And when, before the assassination, did you last see Atzerodt ?
A. About ten minutes after that; we walked together down Pennsyh-ania
avenue, and met Atzerodt at the Kirk wood House, on the steps.
Q. Who walked with you ]
A. Herold.
Q. How came you to take this walk with Herold ?
A. As I was coming down Tenth street I met Herold, and he asked me if I
had seen John Wilkes Booth. I told him I had; that I had seen him in the
morning about 1 1 o'clock ; that he had some letters which he had received ; his
letters used to come addressed to the theatre.
Q. Proceed and state what further occurred.
A. I told him that I saw him a little after 4, on horseback ; that he stopped
in my place and got a drink.
Q. What kind of a horse was it that he rode ?
A. A small horse — gray. I believe, as far as my recollection serves me. Her-
old after this said to me, *• Do you know that General Lee is in town V* I toU
him no, I did not ; that I hadn't heard of it. He says " Yes, he is stopping
down at Willards*."
Q. This, I understand you, was the day of the assassination ?
A. Yes, sir; in the afternoon. Says he, " Yes, he is stopping at Willard«';
let's take a walk up there, and find out something about it." We started api
and as we got to the Kirkwood House we met Atzerodt sitting on the stepi>
He stopped to talk to him, and I walked ahead as far as the comer to wait for
him. He stopped wii h him two or three minutes, and then came back, and walked
with me up to Willards'. After ye got inside of Willards', Herold met two
young men. They talked together awhile ; I do not know what they said*
As they were in the act of parting, Herold says : '' You are going to-night, ain't
you V* One of the young men answered and said, " Yes."
j
TRUL OF JOHN H. 8URRATT. 177
). In what tone of voice waa tfie talk before that ?
^ In a low tone. Thej were apart to themselveB.
3. Was there anything more said that jou could hear other than what jou have
teated ?
A.. No, sir.
Q. What did this man who said he was going to-night do, after sajing '< yes."
A. Nothing. We left him and went out toward Grover's theatre. I noticed
;rold walking a little lame, and says to him, "What's the matter] You are
Jking lame." He replied, " Nothing ; my boot hurts me." When we got
hind the park there, he pulled up his pants to fix his boot. I then noticed
&t he had, run down in nis boot leg, a big dagger, the handle of which was
or or five inches above the leg of the boot. I said to him, " What do you
rnt to carry that for ?" He answered, '^ I am going into the country to-ni^ht
horseback, and it will be handy there." I laughed at him, and said '* You
i*t going to kill anybody with that ?" I left him at the door of Greary's bil-
rd saloon. I went up stairs, and he walked ahead.
Q. Look about in this room and see if you see anybody that looks like the
m who said " yes," when Herold asked him if he was going to-night ?
A. Well, the gentleman, I believe, is that man, (pointing to the prisoner,)
1 1 don't know. As far as my knowledge goes, he looks very much like
D. He had no beard, however.
Q. Had he a moustache ?
A. A little moustache, as far as my knowledge goes. I never was acquainted
th the man before. Who he resembled I could not exactly remember.
Q. You did not see anybody that told you that Greneral Lee was there, did
a?
A. I inquired there, and found there was no General Lee about.
By the District Attorxev :
(J. Were you in partnership with Mr. Taltaval ?
A. Yes, sir.
Q. What sort of a hat did this person have on in Willards' Hotel — the one
It resembled the prisoner ?
A. As far as my knowledge goes, I believe it was a black hat. It was a
>ached hat with a stiff brim.
Cross-examination :
By Mr. Bradley :
Q. You say you have been in the profession as a musician of the theatre
oQTBelf, and had a restaurant close by Ford's theatre at this time ; I will ask
ou if you know Mr. Gifford 1
A. I do.
Q. Do you know Mr. Carlan, who used to be connected there ?
A. Yes, sir.
Q. Do you know an actor named Hest?
A. Yes, sir.
Q« On the night of the assassination did you see cither of those three, or any
^f Aem, out on the pavement in front of Ford's theatre 1
A. No, sir. I was not out of the place myself. I was in the orchestra be-
^l^een the first and second acts ; but in the third act we had nothing to do,
(being always dismissed after the curtain is down,) and so I went out and went
'Wide of my place.
Q> Do you recuUect of seeing any soldiers sitting out on the platform there ?
A. Not that I remember. There were a great many people out there all the
Q' Did yon see any one sitting on the carriage platform ?
178 TBUL OF JOHN H. SUBRATT.
A. I could not tell, because I did not take any notice.
Q. Did 70U return to the theatre again before the assassination of the Presi-
dent?
A. No, sir.
Q. You were in your restaurant.
A. Yes, sir.
Q. Do you recollect of Booth coming in there 7
A. Yes, sir. I was behind the bar at the time.
Q. Was anybody with him ?
A. No, sir. He came alone.
Q. How louff was that before you heard of the assassination ?
A. It must have been between eight or ten minutes, or fifteen minutes ; I
cannot remember exactly.
Q. Will you describe, if you recollect, what light there was in front of the
theatre, and where it was placed that night?
A. We had two lights outside in the street ; then there were two lamps in
front of the theatre. The light is very brilliant there.
Q. Do you recollect where the clock is placed in that theatre 1
A. Yes, sir ; in the passage as you enter the building.
Q. On the right-hand ?
A. In the centre.
By a JuBOR:
Q. In the centre of the doorway ?
A. In the centre of the doorway nearest the alley. On the one side is the
ticket office, and on the other is the door going into the theatre; and in the cen-
tre of that door- way is the clock.
Q. Fixed like the clock in this room ?
A. Yes, sir.
At this point the court took a recess of half an hour.
AFTERNOON SESSION.
John T. Tibbett sworn and examined.
By the District Attorney :
Q. Where do you reside ?
A. In Prince George's county, Maryland.
Q. How long have you been liviug in Prince George's county ?
A. I lived there twenty-two years first ; I left home then and went soldiering.
I went back there and staid twelve months, and I have been here in Wash-
ington ever since.
Q. You are now living then in the city ?
A. Yes, sir.
Q. In what part of the city ?
A. On the island, near the Washington monument.
Q. What is your business ?
A. Blacksmithing.
Q. How long have you lived in Washington ?
A. I came to Washington about the 10th of December last.
Q. You say you were in the army a portion of the lime, in what regiment'
A. The first District Columbia cavalry.
Q. You were enlisted in this city ?
A. Yes, sir.
Q. How long were you in the army ?
A. I enlisted August 5, 1863, and served until November, 1865.
Q. What was your business in 1863 and 1864 ?
TBIAL OF JOHN H. SURSATT. 179
A. A part of the time in 1863 I was soldiering, and a part of that year I
was carrving the mail from Washington to Charlotte Hall.
Q. Where is Charlotte HalH
A. I disremember whether it is in St Mary's or Charles coanty, I was not
veiy mach acquainted in those parts.
Q. How long were you engaged in the business of carrying the mail between
those two points 1
A. I am positive I was more than a month.
Q. State to the jury if you know John H. Surratt, the prisoner at the bar t
A. I do.
Q. How long have you known him ?
A. I have known John H. Surratt for the last ten or eleven years.
Q. Have you been in the habit of seeing him frequently I
A. I have, in passing and repassing from Washington down to my father's,
before carrying the mail.
Q. Did you know his mother, Mrs. Mary Surratt 1
A. I did.
Q. Did yon ever see the mother and son together ?
A. Yes, sir, I have.
Q. Have you ever heard them conversing in the presence of each other in re-
ference to Abraham Lincoln, late President of the United States ? If so, state
what yon have heard them say ?
A. 1 have heard them conversing but very little together. Mr. John H.
Snrratt had but very little to say when I would be passing there, but I have
lieard Mrs. Surratt say
Mr. Bradlbv. I would like to know upon what ground this evidence is
The Court. Do you propose to prove the conversation between the prisoner
and Mrs. Snrratt in reference to Abraham Lincoln ?
Tbe District Attorney. Yes, sir ; the conversation in presence of the pris-
oner, expressing malice towards the President, and pointing directly towards
liis assassination.
Mr. Bradlby. How long before the assassination ?
Mr. PiERRBPONT. We do not care how long.
Mr. Bradlky. Yon will hardly say a conspiracy was formed in 1863.
Mr. PiERRBPONT. We will show, before we are through, that the conspiracy
'Wm formed in I8G3.
Mr. Bradlky. I think the evidence is not competent, but we waive any
«bjfxtion to it.
Witness. I heard Mrs. Surratt say
Mr. Merrick. In the presence of the prisoner at the bar ?
Witness Yes. I heard her say she would give any one $1,000 if they
woTiId kill Lincoln.
Q. State if you heard any other declarations by the prisoner, or by his
, ttf.ther in presence of the prisoner, during this period of time ; and if so, state
^bat th«y were.
A. I du not recollect anything more, except as I would hear them talk occa-
•ionalljr as I would pass, abusing the President ; I paid very little attention to
The District Attornby. I propose now to show by this witness that in
speaking of the President of the United States they made use of the most
\ opprobrious lanpruage, expressing feelings of personal hostility. I oflfer this
, *p['ii the general principle that in a murder case 1 may show the feelings of the
I pnsoner towards the deceased, and especially that he used expressions of malice
^^^ardg him prior to the commission of the crime,
^t. BftAULBY. The witness has already said that he recollects nothing fur-
180 TRIA.L OF JOHN H. 8URRATT.
tlier, except that he has heard a kind of abase of the President. If the object
of the gentleman is to know what kind of abase, it may be obtained possibly
in some other way ; I do not think in this way it can be reached.
Mr. PiKRBBPONT. We put the question directly, then.
Q. State what you have heard said.
A. I have not heard much pass ; only occasionally I woald hear abuse.
Q. State the words that were said.
A. I cannot recollect what the words were. I think, I will not be positive,
I have heard Mr. Surratt say
Mr. Bradley. You need not state what you think you have heard.
Mr. PiERRBPOiVT. You understand that we cannot expect you to repeat the
precise words, nor do we desire you to state anything that is not strictly in
accordance with the truth. Yoa are permitted to state the substance of what
you have heard the prisoner say in reference to Lincoln.
Witness. Whenever there was a victory, I have heard Surratt sav, " The
d d northern army and the leader thereof ought to be sent to hell."
Mr. Bradley. We object to that.
Q. In any of these conversations to which you have referred, did you hear
the name of Abraham Lincoln mentioned ?
(Question objected to as leading. The witness is to be asked simply to state
what he heard.)
The District Attorney. In any of these conversations did Surratt men-
tion the name of Abraham Lincoln, President of the United States ?
(Question objected to as leading.)
The Court. That is a leading question.
Witness. I do not recollect whether he did or not, but at that time I
thought
Mr. Merrick. No matter what you thought.
Mr. Pier RE PONT. Did you in conversation with Mrs. Surratt hear Mr. Stt^
ratt say anything in reference to who was the leader of the northern army?
A. I did not
Q. Did you hear either of them say who was the leader of the northern army I
A. I have heard Mrs. Surratt call the President's name often ; but as to Hr.
Surratt, I never heard him speak but very little of the President.
Q. Was Mr. Surratt present when she spoke of the President ?
A. He then had the mail, carrying it into the room, if I mistake not, to open it.
Q. Was he within close hearing 1
A. He was in the room ; I think he was within hearing.
Q. In speakino^ of the leader of the northern array, was there anything ha
said that indicated who he meant as the leader of the northern army ?
A. I do not know who he meant by that word ; he only said " the leader of
the northern army."
Q. And when his mother was speaking of Lincoln in his presence, he did not
say anything about "the leader?"
A. No, sir.
(J. Then, when speaking after victories, at the time he used these words, " Tbat
they ought to go to hell, and the leader of the northern army too," who did he
say ought to go to hell ?
A. He did not say ; he immediately turned his back and walked off.
Q. What was the manner in which that was said ?
A. He had heard, of some victory won by the northern army, or of emtuci-
pation, or something of that kind; I disremembcr what caused him to use tirt
words.
Q. Did you hear him more than once use words to that effect ?
A. I do not recollect hearing him say that but once.
(j. Was his mother present ?
TRIAL OF JOHN IL SUBBATT. 181
L. I do not recollect whether she was or not.
I. Was aiijhody else present when she said she would herself give $1,000
lave Lincoln killed, except John H. Surratt, the prisoner 1
L. I do not think there was any one in the room but him and her.
Cross-examined bj Mr. Bradley :
l- At what time did you carry the mail in 1863 ?
L. In Fehruary or March.
I. Was it a daily mail ?
L. A daOy mail ; yes, sir.
I, You were not then in the service 1
L. No, sir.
I. Who drove the stage 1
L I drove a buggy, and carried the mail.
I. Who was the contractor?
L. Mr. Thompson.
I. How soon after you begun to carry the mail was it that you heard Mrs.
ratt use that language ?
L. It was, to the best of my knowledge, near about the first of March.
I. This was about the middle of your time of carrying the mail ?
L Tea, sir.
I. What were they talking about ?
L I do not know what they were talking about I cannot recollect so far
k. ^
J. You do not recollect any of the conversation ?
L No, sir. They must have been
). Not what they must have been ; do you recollect what they were talking
mtl
L I recollect of her asking some question about Washington, as she always
L Every day, as I passed backward and forward, they would ask if 1 had
» blockade runners, or something or other. When I would go down from
asbington they would ask how were times in Washingtou, and when I enme
from Charlotte Hall they would ask if I had heard any news from the south ?
Q. On this occasion nobody was there but you three ?
A. No, sir ; not that I recollect.
Q. And you do not recollect what they were talking about when you heard
ST Bay ehe would give 81,000 to any one who would kill Lincoln ?
A. No, sir.
Q. That is all you heard or recollect of the conversation]
A. That is all I recollect.
Q. You were then carrying the mail of the United States ; did you go and
II anybody of that ?
A. I do not think that I spoke that to any one. I paid veir little attention
what I heard in that part of the world in those times. I did not notice it.
Q. You never told anybody you heard Mrs. Surratt say she would give
WOO to any one who would kill Lincoln 1
A. No, sir ; not until it was somewhere, I believe, about two months ago, I
'>ke it to a gentleman in Washington here.
Q. Who was that ?
A. It was my uncle.
Q. Who is he ?
A. Watson is his name — William J. Watson. I suppose he kt the cat out
tbe wallet.
Q. This Mr. Watson is the only one you ever told this to, and that only two
•»ilhB ago ?
182 TRUL OF JONH H. SUBBITT.
A. If I mistake not, I told my father of it. I will not be positive.
Q. Where does William J. Watson live ?
A. In Prince George's county, Maryland,
Q. How far from here 1
A. Thirty-eight miles.
Q. When were you discharged ?
A. In November, I think.
Q. Where were you stationed in the spring of 1865 ]
A. I was with the army of the James, on the north side of the James river.
Q. With General Grant 1
A. Yes, sir.
Q. Where were you discharged ?
A. At Fortress Monroe.
Q. You say you heard John Surratt say — and you cannot recollect hearing
him say it but once — ^that he wished the northern army and their leader was in
hell. Where was that 1
A. It was at his own house, or at his mother's house.
Q. Was it while you were carrying the mail, in February or March, 18C3 ?
A. Yes, sir.
Q. You do not know whether that was after some victory, or something abont
emancipation ?
A. I do not know whether he was alluding to emancipation, or whether it
was some victory ; it was something they were talking about.
Q. Was anybody present then ?
A. I think there were some two or three in the room.
Q. Do you remember any of them 1
A. No, sir, I do not.
Q. Mrs. Surratt and her son both knew you were employed by the govern-
ment as a mail carrier ?
A. Yes, sir.
Q. Yet you heard these two expressions. Can you describe where Mrs. Snr
ratt was when you heard her make use of that expression ?
A. She was in the bar-room, standing, I think, near about the centre of the
floor.
Q. Where was he ?
A. He was then passing, as near as I can recollect. Whether he had opened
the door to go into the room, or not, I cannot state.
Q. Was that to assort the mail ]
A. Yes, sir.
Q. Can you state whether he had not gone through 1
A. I do not recollect whether he had gone through or not. I am confident
he was there just before the time she spoke.
Q. Then she said that to you ?
A. Yes, sir, she said that to me.
Q. And so far as you are positive, you do not know whether any one else
was present 1
A. No, sir, I do not know of any one else being present.
Q. You say you mentioned it to your uncle Watson, and you may have men-
tioned it to your father. Who did you mention it to afterwards t
A. I cannot recollect who I mentioned it to after that.
Q. Who came after you ?
A. A detective, or some one; I do not know who he was.
Q. What sort of a man ]
A. He was an aged-looking man, somewhere about thirty-five or fortjTt I
think. I could not call his name.
TRIAL OF JOHN H. 8URBATT. 183
I Did you tell him?
L No, sir.
I, Did he not come to ask joa what jon knew about it ?
L. No, sir.
I. What did he do when he came ?
L. He said he had a summons for me, and gave me a summons to appear at
court-house.
I. Have you that summons with you ?
L I have. [Summons produced.]
I. Did you go to any other place before you came to the court-house t
L Yes, sir; I went to a eooa many other places before 1 came here.
I. Did you go to any other place and have a conversation about this busi-
8 before you came here ?
L He ordered me to report to Mr. Carrington. I went there, and Mr. Gar-
gton told me to be here in the witness-room.
^. Did you go to anybody else besides Mr. Carrington after that ?
L No, sir.
Q. When was that}
A. Yesterday morning.
Q. Do you mean that you did not tell the detective or Mr. Carrington, or
iybody else, about this ?
A. ^o, sir, not that I recollect
(Examination objected to by the district attorney.
The Court. The witness may be asked whether the detective gave any
rwniBe or offered any reward.)
Q- Did you say anything to anybody yesterday about this matter ?
A. No, sir.
Q. You did not tell anybody what you knew about this business, or what yon
>nld prove ?
A. No, sir, I did not, that I can recollect.
Q- Did I understand you correctly, that you did not mind these expressions
'^1 considering the kind of people that were down there ? Were tnese ex-
f^ons common in that part of the world ?
(Question objected to by Mr. Pierrepont, as too large a scope to inquire about
tprewions " in that part of the world." Objection overruled, on the ground
^ it was in explanation of what the witness had already said.)
A. That expression was very common among the people of Prince George's
>Wity, Maryland.
^fiBBT H. Cooper sworn and examined.
By Mr. Pierrbpont :
Q. Are you now in the army ?
A. No, sir.
Q. When did you leave the army ?
A. In June, 1865 ; I was discharged.
Q. Were you in the volunteer service ?
^ Yes, sir.
Q. Prom what State ?
^- Pennsylvania, Beaver county, town of Beaver.
•J. Do yon live there ?
^. Yes, sir.
c. What is your occupation there ?
^ I am a clerk in a store.
c. When did you enter the army ?
^. I entered it in August, 1862.
i. What was your service?
184 TBUL OF JOHN H. 8UB&ATT.
A. I was in the artillery. I belonged to Thompson's Independent Btt
company G, Pennsylvania artillery.
Q. Where was yonr company stationed ?
A. At Gamp Barry, intersection of Gamp Barry with the Baltimore pik
Q. At that time what was your office ?
A. I was a line sergeant.
Q. In April, 1865, you were a line sergeant ?
A. Yes, sir.
Q. You remember the event of President Lincoln's assassination, of coi
A. Yes, sir.
Q. In the afternoon of that day were you at your camp ?
A. Yes, sir.
Q. At what time did you leave your camp ?
A. It was after dress parade. Dress parade is about sundown.
Q. This was April 14, 1865 ?
A. Yes, sir.
Q. After that, what did you do ?
A. I came to town.
Q. How far was your camp from Ford's theatre ?
A. I presume it is two miles. I do not know the exact dbtance.
Q. Who did you come in with ?
A. I came in with Sergeant Dye.
Q. Where did you and Sergeant Dye go to 1
A. We went down to Pennsylvania avenue, and from there we went up 1
street to Ford's theatre.
Q. What did you go to Ford's theatre for — in consequence of whatt
A. There was no particular consequence — we were merely going to c
We came down Pennsylvania avenue that far, and went up 10th street.
Q. Did you hear anything that made you stop there 1
A. No, sir.
Q. When you got to the theatre what did Sergeant Dye do ?
A. He sat down on the platform in front of the theatre.
Q. Was there any carriage near the platform ?
A. Ye?, sir ; the Presi'.lent'a carriage was standing at the platform.
Q. What did you do ?
A. I do not remember whether I sat down when he did or remained s
ing. I presume I sat down alongside of him, but did not sit but a momc
two.
Q. Tlien what did you do ?
A. I think I moved up the street a few yards towards F street.
Q. Then what i
A. I was walking up and down the street. I walked up to the comer
.street once, crossed over to the other side of 10th street and walked dow
other side.
Q. Did you cross back again on the same side the tlicatre was ?
A. Yes, sir ; I went across right in front of the theatre.
Q. State whether you spoke to anybody ; and if so, to whom ?
A. I do not remember correctly. Sergeant Dye was sitting there, ai
and I may have had some conversation. We had conversations at dif
times.
Q. While yon were walking about ?
A. Yes, {?ir, we did. When I came to where he was sitting I some
spoke to him.
(Counsel for tlie defence objected to this kind of examination as leading
C)bJL'ction sustained by the court.)
Q. Did you speak to any other person that you remember ?
TRIAL OP JOHN H. SUBBATT. 185
A. I do not remember that I did.
Q. You 8poke of the President's carriage standing hy the platform ?
A. Yes, sir ; we observed that when we went there.
Q Did you see anybody about the carriage 1 and if so, who did you see ?
A. The driver sat on the cai-riage, and while we remained there a gentlenmn
approached the carriage to the rear and looked in at the rear of the carriage.
Q. Tell what kind of a man he was ; I speak of age, height, dress, and ap-
pearance?
A. He was a young man, very genteelly dressed ; that was all I noticed about
bim. I did not observe hira particularly.
Q. As to height, what would you say ?
A. I presume he was about five feet eight or ten inches.
Q- Compared with yourself, what was his height, without going into feet and
inehei».
A. I think probably he was about the same height I am, as nearly as I can
recollect.
Q. Did you see any other man standing there near the wall ?
A. I observed a rough-looking man standing near the wall of the theatre.
Q. Tell about his height.
A. I would say, to the best of my recollection, that he was not as tall as the
other gentleman, who looked into the rear of the carriage.
Q. Did you see anybody go into the drinking room by the side of the
theatre?
A. Yes ; I saw a gentleman go into the drinking saloon below the theatre.
Q. Who was he— did you know him ?
A. 1 did not know the gentleman ; he was pointed out.
Mr. Bradlby. That is not evidence.
Mr. Pierrepont proposed to show that this man was pointed oat to witness
M John Wilkes Booth.
Objection sustained.
(Witness at this point partially fainted, and proceedings we^ suspended for
Wffle moments until he had recovered.)
Q- 1 will ask you if the same person who was pointed out to you went into
we drinking saloon ?
■*• Yes, sir ; 1 observed him go into the drinking saloon.
Q- Was he pointed out to you, and his name given ?
^ Yes, sir.
Q- Did you see him come oiit ?
^' Yes, sir.
Q- After this man came out from the saloon, what did he do ?
A. 1 did not observe him after he came out from the saloon.
^' Before that, did you hear any one call the time 1 and if so, what did you
"^ the last time you heard it ?
.^ The last time 1 heard it called was ten minutes past ten. It was after
^"^gentleman came out of the saloon.
Q- Did you hear the time called before that ?
. A. 1 cannot recollect distinctly whether I did or not. I have a faint recol-
^^ that I did, but I am not certain.
Q- Were you so situated at the time you heard the time called, ten minutes
^' ten, that you could see the face of the man who called it ?
^' No, sir ; I was not.
Q- What did you and Sergeant Dye then do ? State what occurred.
A- We started round a corner and went to a saloon to got some oysters.
Q- Did anything occur exciting your suspicion at this time ?
4* 1 do not know that I could say that there was anything particular that
^cited my suspicion.
13
186 TBIAL OF JOHN H. SURBATT.
Q. Did anything occur from anybody else exciting your BOBpicion at tie
timel
Mr. MbRRiCK. Anything that was done?
Mr. PiERRRPONT. Anything that was said ?
The Court. He may state anything that was said or done by other partiei
who were there present acting together, if he saw or heard them.
Q. I want to know whether you had completed your answer in regard to
your suspicion ]
A. I had.
Q. What did you and Sergeant Dye do?
A. We went around a corner to an oyster saloon and ordered some oysters-
Before we had received the oysters a man came running in and said the Fresi'^
dent was shot.
Q. What then did you do ?
A. We ate some of our oysters. I cannot say that we ate them all. Wego^
up and went out to H street, and went down H street to camp. ^
Q. As you were going down H street to camp, on which side of the street d^^
you go ?
A. We went down the right-hand side to somewhere about the Printing Offi^?^
Q. What occurred, if anything, on your way down ?
A. As we were going down H street there was a lady raised a window, p^^
her head out, and asked us what was going on down town, or something to tW —
effect.
Q. What was the reply ?
A. We told her the President was shot. She asked us who shot him. l^S
replied, Booth.
Q. Was there anything about the house to mark it ?
A. I observed there were high steps there.
Q. Have you seen the house since, or passed it ?
A. I have seen a house that resembles it.
Q. What is the number of the house ?
A. 541 H street.
Q. Have you seen it lately ?
A. Yes, sir; a few days ago.
Q. What did you do then ?
A. We went on to camp. A little further down the street we met two po-
licemen.
Q. What occurred between you and the policemen? j
Mr. M BR RICK. That will not do, unless they were part of the conspiratoa
Mr. PiERREPONT. They were not a part of the conspirators, but we deaire
the witness to answer what occurred.
A. Nothing occurred. We met them and passed on. As we met them w«
told them the President was shot.
Mr. Merrick. No matter what occurred between you and the policemen; it
is not proper to be shown.
Objection sustained.
Cross-examined by Mr. Bradley :
Q. In what street was that oyster saloon where you got your oysters ?
A. I do not know now. It was after night, and I did not take notice of the
street.
Q. Did you cross any street before you turned ?
A. No, Fir, I ibhik not. We went round the corner of a street.
Q. 1 be Hm street above the theatre ?
A. I cannot recollect whether it was the first one above or first below.
Q. When you came out from tbere, did you not start directly for the campt
TRIAL OF JOHN H. 8URRATT. 187
A. Yes, sir, and we would natarallj Ptart out F street to go directly to the
camp, bat we may have gone along the next street below, and then gone up to
F Ptreer.
Q. You cannot recollect whether you went towards the avenue or towards H
street!
A. If we went towards the avenue we did not go more than to the next
street below. I do not recollect which way we went, whether north- or south.
I know we went not more than two squares to get the oysters, and then went
' up to H street and went home.
Q. Just after you had ordered your oysters some one came m and said the
President was shot. Tell us what was said at that time.
A. We were very much confounded,
Q. What did the man say as he came in ?
A. I did not hear him say anything that I know of but that the* President
^fn gbot. He was a stranger. I did not know him.
Q. Ht' did not say who shot him, or anything more about it ?
A. He said J. Wilkes Booth had shot him.
Q« That was immediately after the shooting ?
A. Yes, sir; it was just a few minutes after we had left the front of the
weatre.
Q' When I inquired particularly as to where the oyster saloon was, it was in
^er to get at the lapse of time aflter you left the theatre. What time did it
^6 you to get to the oyster saloon ?
^' It could not have been more than a minute or two^a very short time.
Q- Do yon recollect whether you did not cross Tenth street on to the other
«ae of Tenth street?
^- Ko, sir, we did not go there.
"• You know there is a saloon there ?
j^- There may, be one; 1 do not recollect,
ji You are sure you turned a corner ?
^ Yes, sir, I am sure of that.
%• Do you recollect whether, in going into the restaurant, you had to go up
^^^ eteps ?
^- No, sir, we went straight in from the pavement.
X- Do you recollect whether you turned to the right or left, at the comer ?
^ No, sir, I cannot recollect that.
Vl- You say that on your way out to camp, some lady raised a window and
J*'^ to you to know what was going on down Qtroot, ani that you had seen
™J house since ; who pointed it out to you ?
^- It was not pointed out to me at all.
X* Did you go up to look at it for yburself ?
Aj- I was told to go along the street to see if I could observe a house that re*
"^^les the one described as 541.
X* Did you find more than one that resembled it ?
^- I do not know that I did find more than one that resembled' that house.
X. Was there any house adjoining it ?
^ Yes, sir.
X- Has it an entrance of the same kind ?
^ No, sir
Y. What is the diflTerence ?
A' There is an a\l'y right at the side of the house where the lady raised the
^^ow; there is none by the one adjoining.
X- Did you observe the alley that night or when you looked at it recently ?
^ No, sir ; I observed it that night, I observed that the window which was
^'•ed was next to the alley,
Q. Was it over the front door I
188 TBLiL OF JOHN II. SURBATT.
A. No, sir ; it was not over the front door, it was to the left of the front i
Q. East or west ?
A. East.
Q. Was there any light in the room ?
A. 1 cannot distinctly recollect. I do not know as I observed that '
moon was shining. I could not say it was shining bright, but it was shii
so that I could see a considerable distance ahead on the street
Q. Was it a clear or a cloudy night ?
A. I think it was a clear night.
Q. What time in the night was it ?
A. It was probably about twenty minutes to eleven o'clock, as near as 1 1
recollect.
Q. Do you remember quite distinctly about the moon shining and the xu
being clear ?
A. I remember the moon was shining, but to say whether it was shii
bright or not I could not tell. I think it was a clear night.
Q. Are you as confident about that as you are about anything else that nb
A. I am confident the moon was shining. As to the night being dear I
not charge my memory with it. I >think, to the best of my recollection, thoi
that the night was clear.
Q. When that man called the time, do you recollect anybody else out in f
of the theatre besides yourself and Sergeant Dye,
A. 1 presume there was.
Q. Do you recollect ?
A. Yes, sir ; I noticed two or three other gentlemen standing around thoi
of the theatre, but 1 did not observe them particularly.
Q. Therefore you cannot tell whether they had been there some time or i
A. No, sir, I cannot tell.
Q. Were you armed that night ?
A. No, sir ; I bad nothing but a penknife.
Q. You did not carry your revolver wrapped up in a handkerchief?
A. No, sir.
Q. Do you recollect your purpose or object in coming into town that par
lar night of Good Friday, one of our solemn fasts ?
A. We had no particular object in coming into town. The principal t
we came in for waa to witness a torch light procession that was passing uj
avenue
Q. Did you see that ?
A. Yea, sir.
Q. What time did you go up to the theatre ?
A. It was about half past nine o'clock. It may have varied a few mil
from that, but not more than two or three.
Q. You staid there until you heard this man call out "ten minutes
tenr*
A. Yes, sir ; and immediately after that left.
Q. Did you see anything like a military movement — of men cdigniug t
selves about that place ?
A. I did not observe that. I was not standing in front of the theatre ; 1
walking up and down, and was not paying particular attention.
Q. You say you saw one gentleman go into the saloon ; did not you see
one else go in ?
A. Yes, sir, I saw several gentlemen go in ; that one gentleman was po
out to me.
Q. Do you recollect whether a good many went in before that gentlem
after he had gone in ?
TRIAL OF JOHN H. 8URBATT. 189
A. I think they all went in before that gentleman. I do not recollect that I
observed any go in after that gentleman came out.
Q. Tonr attention had not been drawn to that gentleman until he went into
the saloon ?
A. No, Bir.
By a JuBOR :
Q. When you went to get those oysters to which yon refer, did you turn a
. comer ?
A. Yes, sir.
Q. And you do not know whether it was to the right or left ?
A. I do not know whether it was to the right or leflt.
Q* Afi you proceeded down H street and a party put her head out of a window,
coold you distinguish the features of the person ?
A. Yes, sir, I could see her plain.
Q. Could you see her features ?
A. 1 do not know as I observed the features closely, I just remember lookiiiff
?ttheUdy.
Q* Gould you tell whether she was white or black ]
A. Yes, shr.
. Q- Young or old ?
^ She was not a young lady, and I did not think she was an old lady ;
"^nt middle-aged.
Q* In what part of the house was she standing, the second or third story ?
A. The second story. The window was on a line with the steps.
Q- Bow many stories are there to the house ?
A* I Uiink three.
Q- -A.nd she was on a Ime with the steps ; did you go up the steps ?
^' No, sir.
V iDid your companion go on the steps ?
^ No, sir, not to the best of my recollection.
Q* Gould you see much of her body ?
A* No, sir, not very much.
V Gould you tell whether she was a stout lady or otherwise ?
A* She was a very stout-looking lady.
By the Court :
Q' ^hen you speak of the second story, do you mean that the steps landed
•*»e second story?
^ The second story ; yes, sir.
H Then the house was what you would call two stories and a basement ?
A* Yes, sir; that is it, I think.
By Mr. Bradley :
Q* Can you recollect whether she had a cap on or not ?
A 1 do not know whether I observed that or not. 1 think she had not.
I Q« Can you recollect whether she had curls by the side of her head, or
I whether she had her hair brushed back ?
1 A. I think her hair was plain combed back.
B The court took a recess till to-morrow at 10 o'clock.
ft Thursday, June 20, 1867.
B The Court met at 10 a. m.
^B ^. Bradley moved that an order be made that Carroll Hobart, Charles
^B Knui, and Sergeant Dye be recalled, stating that information had come to the
-^ Wledge of the defence since those witnesses had been examined, in reference
0 which they wished to further cross-examine them for the purpose of laying
he&QBJation for contradicting the testimony they had given.
190 TRIAL OP JOHN H. 8URBATT.
The court stated that he could not entertain the motion until proper aff
vita were presented.
E. L Smoot, residence Charles county, Maryland, sworn and examined.
By the District Attorney :
Q Where do you reside ?
A. In Charles county, Maryland.
Q. How long have you resided in Charles county, Maryland 1
A. i^ince the Ist of January, 1864.
Q. I believe you are a native of Maryland ?
A. Yes, sir, of Charles county.
Q. Do you remember removing your residence from Charles county t9 E^
George's ?
A. Yes, sir; in the fall of 1864.
Q. After your marriage ?
A. I was maiTied in 1860.
Q. To what part of Prince George's county did you remove your reside
A. About a mile from Surrattsville.
Q. During what years were you residing near Surrattsville ?
A. 1865 and 1866.
Q. Did you know Mrs. Mary E. Surratt ?
A. Yes, sir ; I have seen her.
Q. State if you know the prisoner, John H. Surratt ?
A. I do.
Q. Do you know him well ?
A. Yes, sir ; pretty well.
Q. How long have you known him ?
A. Some three or four years I do not recollect exp.ctly where I first met 7
Q. Do you recollect of his paying you a visit when you were living in Pr*
George's county near Surrattsville, some time, I think, in the month of JancJ
or Februf*ry, previous to the assassination ?
A. Yes, sir ; I recollect he was at my house on one occasion.
Q "Which month was that]
A. I disremember now. I know it was in cold weather — soon after I m«i^
there.
Q. How long did he remain with you on that occasion ?
A. He went to my house at night, and went away the next morning — ^he b^
the night there, that is all.
Q. Will you state if you had any conversation with him at that time.
A. Yes, sir ; I was talking with him.
Q. State what the convert*ation was.
A. I do not now recollect the exact conversation. We were talking af
different things all the while.
Q. Go on and state, if you please, how he employed himself at that tim^
A. I saw him very often. 1 was joking him about his going to Richm
He never acknowledged to me that he had been to Richmond, but laughed
said : •* If the Yankees knew what he had done, or what; ho was doing, i
would stretch his neck."
Q. Describe his manner when he made use of that remark.
A. lie smiled, and raised his head up in this way, (witness throwing his fi
back in illus^tration of the manner,) and said: "They would stretch this
neck of mine."
Q. What further did he say at that time ?
A. I really don't recollect now what took place afterwards.
Q. I will ask you if you did not in those conversations speak to him of g*
to the city of Richmond 1
TRIAL OP JOHN H. 8URRATT. 191
(Objected to on the ground of being leading. Modified w follows :J
Q. State what he did say in response to anything yoa said about hU going
^ Aichmond.
A.- He laughed, but never acknowledged ir.
I Q- I wish you to state to the jury, if you can, the substance of what he
^df and it wUl be for us to determine whether he acknowledged it or not.
A. I do not recollect now exactly ''what he said, it has been so long.
Q- State the substance if you can ; if you cannot, say so.
-^^ I do not recollect.
Q- Did he deny that he had been to Richmond ?
(Objected to as leading. Question withdrawn.)
Q< Can you recollect of anything that he said at that time ?
^ No, sir.
Q- Have you had any unkind feelings for Surratt ?
(Objected to- Question withdrawn.)
Cross-examination :
By Mr. Mbrrick :
Q- When did you move from Charles county to Prince George's ?
A.. In December, 1864.
^- T>\d Surratt come to your house on the occasion referred to alone ?
A.- Yes, sir ; he was alone.
Q* When did you first communicate this fact that you have just stated to the
jury?
A.. It was after the assassination.
Q- When did you come to Washington city the last time ?
A. The other day. ■
Q. On last Sunday?
A. Yes, sir.
H' Were you summoned ?
A. Yes, sir ; I was summoned to appear before the district attorney.
Q. Did- you go?
A. Yes, sir.
H' I>id you tell him what you have just stated ?
A. Yes, sir, I think T did.
Q- To what official did you go after talking with the district attorney about
«»« matter? .
,^'^ was afterwards examined by Judge Holt ; I did not know his name ;
I ne told me he was Judge Holt after I had been examined.
J- Where was it that you were examined before him ?
^' Up at Winder's building.
Y Opposite the War Department ?
A Yes, sir.
J- Who were in the room?
A Judge Holt and another gentleman ; I do not know his name.
|» Was what you said taken down in writing?
A I think so.
VI- Were there any other witnesses in this case that you know of up there at
A Yes, sir ; nine others went up with me.
Q- How often have you been up before Judge Holt ?
A Only once.
Q- Were you present at the examination of any of the other witnesses ?
A No, sir.
Q. Do you know Mr. John T. Davis, from Charles county ?
A Yes. sir.
192 TRIAL OF JOHN H. SUBRATT.
Q. HaviB you ever eaid to Mr. Davis or any one else that they had o
pay your expenses at the hotel here and give you some ten or fifteen c
day if you would testify 1
A. No, sir; I said that a certain gentleman had told me that h
guarantee me, if I would do what was right. I asked him when I go
he had me summoned ? He said he did not know anything aboat it.
him I was losing a good deal by being up here. " Oh," says he, " I will ae
• right; you will get ten dollars a day if you will do what is right."
Q. Who was that?
A. It was Townly B. Rodey,
Q. Was he getting up testimony in this case ?
A. Not that I know; I do not know anything about it.
Q. Didn't you state that Townly Rodey had brought you a messi
some official personage that you would get ten dollars?
A. Yes, sir ; he told me that he had seen Mr. Wilson, and had mi
right.
By the Assistant District Attorn by s
Q. Have not yon been to Mr. Merrick's office since you have been in t
A. I passed Mr. Merrick's office yesterday morning.
Q. How often have you been to Mr. Merrick's office ?
A. Only once.
Q. Have not you been talking with Mr. Merrick on the street about tl
A. Yes, sir; he asked me some questions about it. He said he was
with a sharp stick, or something of that kind.
Jambs M. Wright, recalled:
By the District Attorney :
Q. You have already stated that you are a chief clerk in the office of tl
Advocate General ?
A. Yes, sir.
Q. State what those papers are that you hold in your hand.
A. This is one of the exhibits of the conspiracy trials. It h marki
hibit No. 63," Jacob Thompson's account with the Ontario Bank, '^
This paper is marked "Drafts on the Ontario Bank for <£6l 12*. lOd
drafti* are enclosed in this envelope, which is marked "Exhibit 37."
the bank book of J. W. Booth, marked " Exhibit 11."
Q. Those papers are all exhibits belonging to the conspiracy trials, a
been in your possession as chief clerk >
A. Yes, sir.
Cross-examination by Mr. Bradley:
Q. Have you had charge of those conspiracy files ?
A. Yes, sir.
Q. Is there among those files a paper or package marked " Diary of J.
Booth ? "
A. It has never been on file with the records of the trjal of the consj
Q. Do you know if that diary has ever been in your office ?
(Objected to by the assistant di.strict attorney on the ground that
amination was not responsive to anything that had been brought ou
examination in chief, nothing having been said on that examination al
diary of Booth. Objection sustained.)
Robkrt Anson Campbell, Teller Ontario Bank; residence, M
Canada.
By the Assistant District Attorney :
Q. What is your occupation ?
A. I am teller of the Ontario Bank, Montreal.
TEIIL OP JOHN H. 8URBATT. 193
Q. How long have you been teller there ?
A. For some eight or nine years.
Q. You were teller there, then, in 1865 ?
A. Yes, sir.
Q. Will you examine this paper contained in an envelope marked '* Exhibit
No. 63/' and state what it is.
(Mr. Bradley objected to the introduction of any proof in regard to Jacob
Thompson's accounts in Canada as being irrelevant.
The Court. It is just one of those cases where we have to admit the testi-
JDony for the time being ; but if the prosecution fail to connect it in any way
^th the prisoner, it will be peremptorily ruled out.
To this ruling Mr Bradley reserved an exception.)
Q- State what that paper is.
A. It is the account of Jacob Thompson with the Ontario Bank, Montreal.
Q. For what time ?
A. Commencing on June 28, 1864 — ^May 20th really, for that is when he
°wde his first deposit — and ending April 11, 1865. The balance was then
•truck, but the account was not closed.
Q* What was the balance then still left to his credit I
A. $1,766 23.
Q- £xamine the papers marked " Exhibit 37," and state what they are.
^ This is a bill of exchange in favor of J. Wilkes Booth for c€61 12s. lOi.,
««Jed 27th of October, 1864.
Q- I B that in your account ?
j^' No, sir. This is a bill of exchange which I sold Mr. Booth on the 27th
ofOctober, 1864.
Q- That is not in Thompson's account 1
^' No, sir; it is a diflferent thing.
• Q- «J. Wilkes Booth came and bought a bill of exchange on New York from
^ Tes, sir.
Q* ll^hatis thedateof it?
^ 5i7th of October, 1864 ; in three sets.
V Indorsed and paid ?
, ^' l^ot indorsed. It was payable to Mr. Booth's order, but I see it is not
indorsed.
Q- Neither of the three ?
^' No, sir.
Q- They are still outstanding claims of yours on the Bank of New York ?
j^ No, sir ; it is sterling on our agents in London.
Y It has not been paid yet ?
^- No, sir ; still outstanding I do not know who will get the money.
^•'- Bradley. We will try and get it. He is one of the parties to this suit.
Q- State what that is — Exhibit 11.
-^ This is a pass-book showing the account of J. Wilkes Booth with the
v>ntario Bank.
(*^iie counsel for the prisoner desired it to be understood that they objected to
*"® P'f^iduction of each of the three exhibits; and that, each said objection being
overruie^^ they reserved an exception to the ruling in the three cases
^P^tively.)
^- State what entry is in that.
^ It is a deposit of $455, made October 27, 1864.
X- Deposit by whom 1
^- By J. Wilkes Booth.
Vi- h bis handwriting there ?
l&l TRIAL OF JOHN H. SURBATT.
. *
A. No, sir.
Q. On the certificate ?
A. No, sir; not on the certificate at all.
Q. Will you examine this account that you first looked at, and state wl
shows as to deposits made on the 6tb of April, and what those pencil-DG
indicate in Thompson's account ?
A. There are three entries on the 6th of April — one for $7,098 ; that
ch(*ck.
Q. State what that was on.
A. That was deposited in a check. (After examination,) No, sir, this is
a deposit. It is a check drawn. He drew a check, which we accepted i
day, for $7,098. Then we gave him a deposit receipt for 8180,000, for wl
he gave his check. ,
By Mr. Pibrrbpont :
Q. That was a deposit with you by a check?
A. We gave him a deposit receipt in place of keeping this deposit in
ledger, for which he paid us by check, of course.
Q. What I want to know is how he got it in your bank — whether by bil
check.
A. He deposited sterling exchange on London.
Q. That $180,000 was deposited on sterling exchange ?
A. No, sir. Having a large amount to his credit, be just drew this chec
$180,000 against his account.
Q. What was his balance on the 6th of April ?
A. The papers don't show it. I should say about $200,000 before dra^
this check.
Q. When was this $180,000 drawn ?
A. On the 6th of April.
Q. And for it you gave sterling ?
A. No, sir. We gave a deposit receipt. Ho wantel that so that he c
make use of it in a foreign country if he wanted to go there or anywhere el
Q. He gave a check for the receipt ?
A. Yos, sir. You call them here. I believe, certificates of deposit.
Q. What do those pencil-niirks there indicate ]
A. Those show the amount of exchange he purchased on the 8th of Apri
Q. You will observe there that on the 6th, in that second line, there are «
pencil-marks ?
A. That is " D. R.," deposit receipt.
Cross-examination :
By Mr. Bradley :
Q. By whom were those pencil-marks made ?
A. They were made by myself.
Q. Was the account made out by you ?
A. No, sir ; but I examined it.
Q. Is this pencil memorandum, " Close order and deposit receipt and retu
in your handwriting ?
A. No, sir.
Q. Further down is another memorandum — pencil fi:^ures ?
A. This is a check in favor of our counter branch for a certain amount.
Q. Is that in your handwriting]
A. No, sir.
Q. Have you any personal knowledge of those pencil-marks, when they "^
made, and by whom ?
A. O, ye^, sir; male out by the party who male out the account —
bookkeeper.
TKUL OF JOHN H. 8URRATT. . 195
Q Just below there are three or four other entries ; are they iu his hand-
i. Yes, BIT.
By Mr. Pibrrbpont :
Q. This account I see is headed " Jacob Thompson," which doesn't convey
* ^eiy definite idea as to who Mr. Thompson is ?
A. He passed in Canada as the Hon. Jacob Thompson.
Q. From where ?
A. From the United States.
JoHiv Lee — residence near Vicksburg, Mississipp* — sworn and examined.
By the District Attorney :
Q. "V^here do you reside ?
A. iSetween Vicksburg and Meridian, Mississippi. I have been residing there
for the last twelve months.
Q. AVbero did you live previous to emigrating there ?
A. Bere, in Washington.
Q. Eow long did you live in Washington ?
A. Somewhere in the latter part of 1862 I was detached from my regiment
ttid brought here. 1 was detached from the ninety-fifth New York regiment
•nd dx-rlered on duty at the War Department, under Colonel Baker.
Q. Had you resided in New York before you came to Washington.
A. Yes, sir.
Q. You enlisted as a soldier in the ninety-fifth New York ?
A. Yes, sir; 1 was sergeant of company E.
Q. Bow long were you in the army 't
A. I enlisted for three years, and was in three years, lacking ten days.
^ Q- In what service were you detailed ?
A. In the secret service, under Colonel Baker, provost marshal of the War
department.
Q« You were a detective officer under Colonel Baker ?
^' Yes, sir.
Q* In that capacity, did you have opportunities of becoming acquainted with
"»e people here in the city 1
^' Yes, sir; I got more or less acquainted with everybody who lived here in
WMtiington. I was over the streets every day, not excepting Sunday, on pub-
Jc atnj private business for the departments, making arrests, looking into the
"^^**tinents, and so on.
y Did you know John H. Surratt, the prisoner ?
t^* 1 knew John U. Surratt by seeing bira.
Y l«ook at the prisoner and state if you recognize him ?
^^ Yes, sir ; I recognize that young man ; but he did not have that " goatee "
®"^l^«n I saw him.
^* State if you saw him on the 14th of April, 186*5; and if s>, where you
^^ tim, and about what time in the day.
^* On the 14th April — I was at that time with Major O'Beirne, the provost
"^'^^lial of the District of Columbia — I went to the Wai?hington depot with
!J^^^^rjce to men who were deserting. I was not looking for deserters myself,
'^J^as chief of the men employed for that purpose under Colonel 0*Beirne.
Y What force was that ?
tA iT '^^^ detective force of the Provost Marshal's department. I went down
.^■^e depot, and on my way back, at the corner of Sixth street, I stopped a
■ 'itnuie to answer a question — the man who asked it I do not know — but he in-
IVWr^ about some young fellow wlio was in my regiment. When I left him I
^^Unued on up the avenue, the right-hand side going up towards Thirteenth
196 TRIAL OF JOHN H. SURRATT.
street. When near Mr. Stinemetz's hat store I passed a man whom I tXM
be John H. Surratt. He was coming this way, and I was going in an opp<
direction. It was between Franklin's spectacle store and Stinemctz's hat b
Q. Are you satisfied the prisoner was that man ?
A. To the best of my knowledge that is the man. (Pointing to the prisoi
Q Had you seen him frequently before ?
A. Not as frequently as I have seen some people about Washington.
Q. How often had you seen him ? Did you know him well by sight f
A. I should suppose I had seen him a dozen times before that.
Q. Was he walking rapidly or slowly at that time ?
A. He was going in an ordinary gait I was going fast myself, wall
quickly.
Q. I will ask you if, on the 15th — the next day— you were called upoi
make any examination, or any investigation, into this matter?
A. I was. I went to the Kirkwood House. Major O'Beime got an ordc
bring all his force to the Kirkwood House to protect Mr. Johnson. I go(
order from Major O'Beime to go up on top of the house to see that nobody o
in from the roof. I detailed men to all parts of the house ; and then wenl
on the roof to look around. I afterwards went down into the clerk's office
book-stand in the office, when a young man came up to me. Getting ceil
information, I went up to room No. 126, and finding it locked, endeavore
get the key, but it could not be found. I then got Mr. Sprague to go up si
with me. When we got there I asked him if we should burst the door o]
He said he did not know ; that it might make trouble. I told him that I
an idea that everything was not right about that room. I finally burst o
the door and went in. Finding a pistol, I went down stairs to hunt for H
O'Beirne ; I found he was in a great hurry to go up the street ; and so he
me to manage the matter myself. I then took this young man, Mr. Jones, w
I found in the office, up stairs with me. On the wall I found a black coat hi
ing, in the pockets of which was a spur, and also a bank book of J. Wilkes Be
Q. Look at that book and state if that is it. (Handing witness bank-l
of J. Wilkes Booth.)
A. That is the book.
Q. What else did you get?
A. It is very difficult for me to get at these things as I did before, becau
is a long time ago, and I have not kept any notes whatever.
Mr. PiERRBPONT. It is not of the least consequence that you should s
them in the same order.
Witness. I got from the pockets also a handkerchief, and a half stic
black licorice. 1 then went to the bed, lifted the covering, and got, betv
tlie sheet and the mattress, a large bowie-knife, with a red case around it
then hunted the room all over to see if I could find any letters or papers
did not find anything else. I took the coat, and these things that I had foi
and went down stairs to the parlor, right next to the Vice-President's room. 1 1
them until Major O'Beirne came in. Major O'Btirne picked them up and
ried them into Mr. Johnson's room ; showed them to him, and then brov
them out and gave them to me. 1 locked them up at my own house.
Q. State where Mr. Johnson's room was with reference to this room fi
which you took these things 1
A. It was on the next floor above.
Q. Which was above, President Johnson's room or No. 126 ?
A. Mr. Johnson's room was on the second floor facing
Q. On what floor was this other room?
A. The third floor.
Mr. PiERiiEPoNT. Before you go any further I want to fix one thing. I
derstand from my associate that the witness said he found this paper (hold
TRIAL OP JOHN H. SUBRATT. 197
vp a piece of paper) in this bank-book. I did not so understand him. I want to
ascertain whether that is so.
Q. Was this paper in the book at the time yon found it ?
A, I never saw that paper before now.
(^ 60 on and state what else you did with these things.
A. The next day Major O'Beirne came and gave mo an order to hook up the
hone and wagon and take this bundle to Secretary Stanton's.
Q. Was that the same day ?
A. That was the next day — Sunday. I went and showed them to Mr. Stan-
ton, and told him we had showed them to the President. He was very angry.
District Attorn by. Never mind about that
Witness. I gave him the things and he handed them back to me. He ex-
^nuned them all carefully except the pistol. He didn't care to look at that.
He told me to roll them up and keep tnem in my possession until the military
^Bumasion tried the parties at the arsenal. I was then sent for to bring those
I^Sa, and J took them up to Judge Holt's office and delivered th ^m to Judge
id?ocate Burnett.
Q* That was the last you saw of them ?
•^ Yes, sir ; until I saw them in court. I see some of them here now,
Q. Have you seen them within a day or two ?
•^ No, sir ; I have not seen them since I left them in possession of the gov-
The court here took a recrss of half an hour.
AFTERNOON SESSION.
JoH M Lbb cross-examined :
By Mr. Bradley :
9* ^ou say you were a detective officer in the force of Colonel Baker, in the
V^^S of 1865, and then in that of Colonel O'Beime ?
A. No, sir ; not in 1865.
Q» "When did you go under Colonel O'Beirne ?
A. I could not give you the exact date, it was before 1865, 1 think ; I was
with Oolonel Baker before 1865.
Q» Sow long were you with Colonel Baker ?
A. -A year or more.
Q. AVhatyear?
A. 1863, 1 think, and 1864.
Q* C3an you come no nearer to it 1
A. >fo, sir ; not by my memory.
Q- That year was embraced in the years 1863 and 1864 T
A. I left Aquia Creek at the first burning of the place by General Bumside.
I came to Washington and went to Colonel Rucker's office (now General Rucker)
wiA Captain West, who was post quartermaster at Aquia Creek. While 1 was
there Colonel Baker met me and asked me what I was doing. 1 told hira we
hid all left Aquia Creek ; that Fredericksburg was all gone, and that we had
come to Washington.
Q- I do not desire you to go over all that ; what I wanted to know was when
yon left Colonel Baker and went with Colonel O'Beirne ?
A. I think it was in 1864.
Q- What time of the year?
A I cannot recollect the exact time.
Y Ww it in the winter, spring, or fall ?
A- I cannot tell that.
J Did you go directly to Colonel O'Beime 1
BUT.
198 TRIAL OP JOHN H. 8URRATT.
Q. What did you do after you left Colonel Baker?
A. I went with Captain PntnaDoi. Major 0*Beime succeeded Gaptain !
nam.
Q. What was Captain Putnam's duty ?
A. He was captain of the detective force in the provost marshal's office
got my discharge from my regiment a few days before T went with hioi.
Secretary of War gave me my discharge some ten days before my time was
to take an office, but I did not accept the office.
Q.. Were you in the military service while you were under Baker?
A. Yes, sir ; in the United States military service.
Q. What was your position ?
A. Sergeant.
Q. And you then went with Captain Putnam. Where was his headquarti
A. At the corner of 19th and I streets.
Q. State whether your duties confined you very much to that office* or whe
you were much about town while you were with Captain Putnam.
A. I was all the time on duty going about — very busy.
Q. Can you state when you went under Colonel O'Beirne ?
A. Captain Putnam resigned and Colonel O'Beime took his place. 'It mi
be six months before the assassination, and it might be a little more than th.
Q. That was in the fall of 1864 ?
A. Yes, sir. ^
Q. And you cannot tell how long you were with Captain Putnam f
A. No, sir ; Captain Putnam was not there long after I went with him.
Q. A month, six weeks, or two months 1
A. O yes, sir ; more than that. I suppose I was there with Captain Puti
about six months.
Q. And with Colonel O'Beirne about six months, which would make a y
before the assassination ?
A. About that time.
Q. And you left Baker some time in the spring of 1864 ?
A. I cannot tell ; I do not know the date when I left Colonel Baker. 1
had my discharge 1 could tell.
Q. When did you first see Surratt ?
A. The men were sent round looking after people who were carrying m(
cines tlirough the lines. Sometimes there would be fifty notices and sometin
three or four notices of people running the blockade, carrying quinine, m
phine, &c. There was a good deal of excitement about it among all the n
on the force. They were sent to hunt up these men. Every now and tli
some one would be pointed out as a suspicious person.
Q. Did you understand my question — when did you become acquainted w
Surratt ?
A. It was during this time. We were looking after parties carrying quin
and morphine.
Q. W hat time was that ?
A. The time myself and the men arrested a man by the name of Bayley i
a Miss Buckner.
Q. I want you should tell about what time it was.
A. I could not tell without seeing Colonel Baker's books ; I cannot recol
the dates.
il. Do you recollect where Surratt was pointed out ?
A. The first place he was pointed out to me was down by the Baltimore de
Washington.
Q. How long was that before the assassination ?
A. I could not tell how many months ; it was a long time before the ossass
tiou.
TRIAL OP JOHN H. 8URKATT. 199
Q. Wm he riding, walking, or sitting ? Where was he t State whether any-
bodj was with him.
A. I do not recollect whether there was or not.
Q. When did you see him afterwards ?
A. I saw him on the avenue, and I saw him on the road going across the East-
en Branch bridge.
Q. How often ?
A, Once or more ; I do not recollect.
Q. Did yon know where he was living then ?
A. No, sir ; I did not.
Q. You did not know whether he belonged hero or somewhere else ?
A. No, sir ; I could not say whether he belonged in the city of Washington or
OQtside the city. I had no particular notice about him, more than generally that
he was a rebel.
Q* Was it not your duty to find out who he was and where he belonged, in or-
der to prevent him as well as others from going through the lines ?
A. The same as any other person that there was any suspicion about.
Q. Ou that sort of duty did you not find out who these people were, a great
many of them 1
A. I did.
Q. Was it not a part of your duty to find out who they were, and where they
belonged ?
A. Some of them I found out the exact locality. It was our duty, if we had a
special order to that effect.
Q- When you were informed that such a person was carrying passengers or
medicines through the lines, was it not your duty to ascertain who they were and
where they belonged, without any special orders ?
A. Not particularly. We got our orders through the office, and when they
"^ted to any particular party, if we could not get names, we took a description.
Q. When they were pointed out, was it not a part of your duty to find out
where they were, and who they were ]
A. Yes, sir, if there was any special charge against them.
Q- The charge against Surratt was that he was carrying quinine, calomel,
fe-f to the enemy. Did you ever try to find out who John Surratt was ]
^' No, sir ; I did not.
Q* Ordinarily when you saw him, was he riding or walking ?
^ I never saw him on horseback at all, nor in a carriage.
Q- Then when you saw him going down towards the navy-yard bridge, was
he on foot]
^ Yes, coming up from the Eastern Branch bridge on foot,
Q' What was his ordinary dress]
^ I could not tell you that.
Q* You could not tell how a man you were cautioned against was dressed, or
*here he was located?
^- I did not tell you I was cautioned against Surratt.
Q- Did you not tell us he was pointed out as one of those people suspected
^passing through the lines, and a rebel ?
^ I did not say he was carrying anything through the lines.
. Q* You did not say he was pointed out as a suspected person going through
"»« fees, and a rebel?
^ 1 said that he was liable to be pointed out to me, or to any of the men, as
*P«HM)n suspected.
X' Bid you say he was liable to be pointed out as a person suspected, or did
y^^ say he was pointed out as a person suspected ?
"^ I said he was pointed out tiie same as others were to me, as a sospicioas
200 TRIAL OF JOHN H. SUBBATT.
Q. As a snspicioas person about going through the lines {
A. Yen, sir.
Q. Then he was pointed out to you as a suspicious person {
A. Some of the men said " this man goes through the lines."
Q. Did you observe whether he wore the same sort of dress commoi
not» or whether he changed his dress ; whether there was any disguise ?
A. No, sir ; I never saw any disguise at all.
Q. Did you ever see any change of dress that attracted your attention I
A. No, sir ; I did not.
Q. You could not tell how he was dressed ?
A. No, sir ; there was nothing that induced me to pay particular attent
(4. There was nothing that induced you to mark a man you were on the
out for ?
A. I was not on the lookout for Surratt.
Q. You were not on the lookout for a man who was suspected ?
A. Not eopecially.
Q. Were you not on the lookout for other men suspected of going th
the lines ]
A. No, sir ; there were a great many men pointed out that I never pai
particular attention to.
Q. Then, did you pay any attention to Surratt 1
A. No, sir.
Q. Can you tell whether he wore a goatee, whiskers, or moustache a
time]
A. I think he had a little beard on his lip ; I am not positive about thi
Q. Can you tell anything about the color of his moustache or hair?
A. It was the same color it is now, sandy.
Q. I am not speaking of what it is now. Can you, without looking al
from the picture in your mind, say whether he had a moustache or bean
wfiat was the color of his hair?
A. I think he had a little beard on his upper lip, a moustache, and that i
sandy in color.
Q. Is that from memory or from what you see now ?
A. No, sir ; it is not from what I see now at all.
Q. Now tell us what notice you had ever taken of him ?
A They would go along and say, " There goes a rebel ;" I would look J
so that I would know him again when I saw him.
Q. You would know hini so well that, in the course of a year or two, b
never exchanged a word with him, and seeing him pass by in the streei
would say that was him 1
A. I might be mistaken in that, too.
Q. AVad there anything on the 14th of April in your mind to direct yc
tention particularly to John H. Surratt ?
A. No, sir.
Q. Did you meet him ?
A. I passed him on the street.
1^. How was he dressed ?
A. I cannot tell
Q. Did you turn around and look at him ?
A. No, sir ; I did not.
Q. Were you examined before the military commission in the cons
trial after the assassination ?
A. Yes, sir ; I was a witness on that trial.
Q. Did you, as a witness on that trial, say one word of having seen J*
Surratt on the 14th of April ?
A. I never was asked the question.
TRIAL OP JOHN H. 8URBATT. 201
Q. Did not you know, in your office as detective, and especially in your re-
lation with the apprehension of the conspirators, that it was most important to
find out whether John H. Surratt was here or not ?
A. No, sir; I did not think so.
Q. Did yon tell any human being that you had seen him ?
A. No, sir ; I do not know that I did.
Q. Before you appeared as a witness on the conspiracy trial, were you ex-
amined as to what you knew by any officer of the government 1
A, I had some Questions asked me by a deputy judge advocate.
Q. By whom, Mr. Bingham ?
A. Colonel Burnett, I think.
Q. Did not you know that it was of first importance to find out whether
John H. Surratt was concerned in that assassination or not ?
A. No, sir; I had no thought about John H. Surratt. The only man I had
special thought about was Atzerodt.
(I When did you ever think of John H. Surratt as connected with it 1
A. I heard general talk about the complicity of John H. Surratt, but I had
nothing to do with him ; my whole business was after Atzerodt.
Q- Was not your business to find out every man connected with the assas-
sination? '
A. My whole time was taken up with Atzerodt.
Q. Was it not your business to communicate all the information you had
ttpon the subject relating to any man charged with that conspiracy ?
A. It was my business to find out anything against him.
Q- Did not you know that John Surratt was charged as one of the con-
spirators?
A. I heard it said so.
Q' Was it not a common subject of conversation ?
A. Yes, sir, it was.
Q« Was there not evidence about him on the trial ?
A. No question was ever put to me.
Q- Was anything said by you on the trial about Surratt ?
A. I do not know that there was.
Q- Did you ever communicate, then, to any human being about your having
*^n Sorratt ?
A. No, sir ; I do not think I told any one of having seen Surratt until I was
°^ht here, at this time.
Q- Who did you tell then ?
A. I told one or two of my friends or acquaintances.
Q* Who else did you tell besides a friend or two of yours ]
A' I do not know that I told anybody else.
Q' Were you not interrogated as to what you could prove on the trial by an
^^cer of the government ?
^ Here ? No, sir
V' You were not examined by the district attorney, or anybody else, here ?
.^' I simply said to him, " How do you do, sir;" and I spoke to one of the
*^ counsel and asked him who I was a witness for.
. \' You did not tell anybody connected with the government about your hav-
jSseen John H. Surratt on the 14th of April, at anytime since you have been
^ Yes, sir, I did.
I
Q- Who did you tell?
A I told the district i
- told the district attorney.
X* I thought you did not tell the district attorney ?
14
202 TRLAIi OF JOHN H. SUEKATT.
A. Yes, sir ; I told Mr. Wilaon.
Q. I asked you if you did not tell the district attorney and you said " N
Now you correct yourself.
Mr. PiERREPONT. O, no ; he did not correct himself.
3Ir. Bradley. I beg your pardon, I am speaking to the witness. If ]
have any objection, make it to the court.
Mr. PiERREPONT. I do objcct.
The Court. Go on with the cross-examination.
Q. Now I ask you, did you not tell the district attorney about this ?
A. May-be I can give you the exact words. He asked me if I was acquain
with Surratt. I told him " Yes." He asked me if I was well acquainted w
him. I told him " No, only by sight." He then asked me when I last saw hi
I told him, " On the 14th of April."
Answer objected to by Mr. Pierrepont.
Mr. Bradley. I endeavored to stop him from stating his conversation,
merely wanted to know whether he did not communicate to the district attoro'
about his having seen Surratt.
Mr. Pierrepont. We do not object to that.
Q. Now I want to know who else you told it to besides the district attom«
A. Mr. Wilson.
Q. Who else]
A. I think I told it to Mr. Butler.
Q. What Butler ?
A. Ferdinand Butler.
Q. Who else?
A. I may have made a remark out in the witness-room.
Q. I mean before you came to the court-house at all ]
A. I did not speak to anybody before I came to the court-house.
Q. When did you come to the court-house ?
A. I came here on Sunday morning.
Q. And you did not tell anybody, except the district attorney, what y«
knew about this matter, unless you spoke to Mr. Butler about it.
A. I may have spoken to two or three persons about it.
Q. Who else do you recollect except Mr. Butler ?
A. I recollect, I think, Mr. Tucker.
Q. What Tucker ?
A. He lives at Mr. Butler's, I believe.
Q. When did you tell him about it ]
A. I think it was yesterday.
Q. And you do not recollect anybody else 1
A. Nobody, that I recollect now.
Q. Did you speak of it to any one who wrote it down or made a note of wh^
you said ?
A. Not to my knowledge. I did not see anybody writing. It may bavebe^
done behind me.
By a Juror :
Q. The first time you saw Surratt, who pointed him out ?
A. Some one of the men of the force. I do not know who it was. Th©«
things would happen sometimes a dozen times a day. It is the peculiar b(i|
ness of the men to go about all the time. They do not know sometimes w^*
they are looking for, and it is a common thing for them to remark, seeing
person pass, that is so and so«
TEIAL OF JOHN H. SUBBATT. 203
Q. Do 70U recollect the date when jou first saw him 1
A. No, sir.
Bj Mr. Bradley :
Q. "What time in the day was it that you overtook Surratt on the avenue ?
A. I think, as near as I can tell, it was between 3 and 5 o*clock. I wanted
to ^et up to the office.
Q. And you were walking rapidly past him ?
A. Going at my ordinary gait.
Q. Did you not say you were walking fast ?
A. I always walk fast.
Q. You were walking fast and he was walking slow?
A. Ye8, sir.
Q. This was between 3 and 4 o'clock, as well as you recollect ?
A. Between 3 and 5.
By a Juror :
Q. I understood you to say that he was going down 1
A. I was going on the right-hand side of the street. He was on the left-
hand side of the pavement, near the curb.
Q. Then you met him; you did not pass him ?
A. I passed him on the sidewalk. He was going the other way from what
1 was.
Q. You said you were walking rapidly and he was walking slowly. How fast
vaa he walking ?
A. He was walking ordinarily along ; not so fast as I did.
Q- You do not recollect the time when you first saw him?
A. No, sir ; I do not.
Samuel A. Rainey sworn and examined.
Bj Mr. PlERRKPONT:
Q- Whore do you live?
A. In Washington. I have lived in Washington about twenty years.
Q- W'^hat is your business ?
A. My business for the last twelve or fourteen years has been dealing iu
iiorses and keeping a livery stable.
Q- Where has been your livery stable the last four or five years ?
A On .Sixth street.
Q* In the same place ?
A- No, sir ; in two diflferent places.
Q- State where it was from tne 1st of January to the 1st of June, ISSt**.
A It was on Sixth street, south of the avenue. 1 did not keep the stable at
that time. I was there, and kept my horses there occasionally.
Q- When did you first take an interest in the stable ?
l^'iTNEss. Which one?
^^^- PlERRKPONT. Either.
^- I could not say exactly the date.
Q- It was as early as January, 1864 ?
, 1 ^* ^^ might be. I am not positive. I have been in business all the time ;
^^[l am not positive, from the fact that I never kept any account of it.
Q- What do you think about its being in January, 1864 ?
^- I do not think I had the stable in 1864.
X- When did you first have an interest in any stable ?
A« I have had an interest in stables for the last twelve years.
Sc- When in '64, and in what stable were you interested ?
204 TBikL OF JOHN H. SURBATT.
A. I was keeping a stable at the corner of Sixth and G streets, and
buying and selling some horses.
Q. When did you take^this stable you occupied in 1865; when was it
opened by you?
A. I took it the 1st of January, 1865, to the best of my recollection.
Q. Who took it with you ?
A. Dr. Cleaver ; his name is William E. Cleaver.
Q. Was he a veterinary surgeon ?
A. Yes, sir.
Q. How long did you and Cleaver continue together in that business f
A. To the best of my recollection some eight or nine months ; not qu
year.
Q. He and you, from the 1st of January to the Ist of June, were partne
A. Yes, sir.
Q. Were you equal partners i
A. Yes, sir.
Q. Did you keep the books of the firm 1
A. They were kept by Dr. Cleaver. My health was bad during that ;
I was very little at the stable ; and it is bad still. I was there off and on
not regularly.
Q. Did you know John Wilkes Booth?
A. Only by name. I was not acquainted with him.
Q. Did he come to your stable, and did you see him there two or three tii
A. I remember seeing him there once or twice ; once that I remember.
Q. I suppose you know what Surratt came there for ; if so, state.
A. Yes, sir. It is customary for men coming there to have busii
generally.
Q. What was his business ?
A. Surratt came there on one occasion to get a horse. *
Q. At what time was that ?
A. I do not remember. My partner hired the horse.
Q. You saw him there ?
A. I saw him there.
Q. Have you any memory of what kind of a horse that was ?
A. To the best of my recollection it was a bay mare.
Q. Do you remember what time in January it was, or whether it w«
January ?
A. 1 do not.
Q. Was it in January or February ?
A. I cannot say.
Q. It was after the 1st of January?
A. It was after the 1st of January, for we did not take the stable until
1st of January.
Q. You say your partner kept the books ; look at the books now shown
and state whether these are the books of the firm ?
A. Yes, sir ; these books have been used at the stable.
Q. Whose handwriting are they in ?
A. Dr. Cleaver's, principally.
William E. Cleaver sworn and examined.
By Mr. Pibrrbpont :
Q. Are you the Dr. Cleaver who kept a livery stable in 1865 ou Si
street ?
A. Yes, sir.
' what place ?^
THIAL OF JOHN H. 9UBRATT. 205
A. Near the corner of Maryland avenue ; between B street and Maryland
HFenae.
Q. When did you commence there ?
A. In January, 1865.
Q. "Who kept the books of the firm ?
A. I did.
Q. W^ho was your partner, if you had any ?
A. Jlir. Rainey.
Q. Did you see him on the stand ?
A. ^^0, sir; I was not here.
Q. Samuel A. Rainey, was it ?
A. ^ea, sir.
Q. Have you seen him lately ?
A. "Yes, sir; I saw him in the witnesses' room just now.
Q. liow long did he and you continue as partners 7
A. -About eighteen months.
Q. What was your business then ?
A. liivery stable and veterinary surgeon.
Q. How long had you been a veterinary surgeon ?
A. Seventeen years in this city.
Q. How long have you lived here ]
A. About seventeen years.
Q. Were you educated as a veterinary surgeon 1
A. Yea, sir.
Q- In 1865, or prior to 1865, did you keep any other stable in any other
place?
A. Yes ; I kept a stable on B street.
Q- Did you know J. Wilkes Booth 1
A. Yes, sir.
Q- T)id you know John H. Surratt t
A. Yes, sir.
Q- How long have you known John H. Surratt 1
A. About twelve years, I think — ten or twelve years.
Q- Have you had a speaking acquaintance with him ?
A. Yes sir.
Q' What was the mode in which you addressed him and he addressed you ?
.^- He came down to hire a horse of me at the time Booth kept his horse
with me.
Q- What did you call him and what did he call you t
^' I usually called him "John,'' and he called me " Doc."
Q- When did Booth first bring his horse to you to keep ]
^' The 1st of January, 1865 — the day we got the staole.
Q- And to that stable on Sixth street ]
^- les, sir.
Q- What was the health of your partner at this time ?
A He is sickly all the time.
^J- Bradley. What on earth has all this to do with this case ?
I he Court. I cannot see its relevancy.
^Ir. PiBRRBPONT. I think your honor will see some relevancy before we are
tnrougt^ It is a single fact proven by itself.
T- State what horse Booth brought
A. He brought a one-eyed bay horse first.
Q- What next?
A- About ten days afterwards he brought a light bay horse, very light bay.
V Did he bring any others ?
206 TRIAL OF JOHN H. 8URRATT.
A. No, sir.
Q. At what time was this ?
A. In January, 1865. I thitik you will find it in the book there.
Q. State whether you saw him and Surratt there together.
A. Yes sir.
Q. What were they there together about ? What did they say and do ?
A. I do not know ; the first time, I hired a horse to them.
(Objected to by Mr. Bradley, as having nothing to do with the conspiracy.
Mr. Pierrepont said they would connect it with the conspiracy.
Question allowed by the court, to be ruled out if not connected subsequently.)
A. The first time I saw Surratt there with Booth, Booth came, I think, and
paid one or two weeks' livery. Then, three or four days after, he came down
and I hired him a horse to go into the country.
Mr. Bradlby. Hired to whom?
A. To Surratt. He came and hired a horse two or three times. The next
time. Booth and Sam. Arnold came there together.
Mr. Bradley. I must object to that. Sam. Arnold is not named in the ia
dictment.
The District Attorney. Your honor will remember that the count in tk.
indictment refers to "divers persons to the jurors unknown."
The Court. If you show that Arnold was connected with the conspiracy
the evidence will be proper.
Mr. Bradley. That is all we desire.
Mr. Pierrepont. I understand that we shall show that.
A. The last time Surratt came there and hired a horse he came there aboxj
three or four o'clock in the afternoon.
Q. When was that?
A. That was the 25th of January, 1865.
Q. Previous to that time, when he had met Booth there, had he any conver
sation with him ?
A. He always came with him, except on this occasion.
Q. On this occasion, who did he come with ?
A. Nobody. He came alone.
Q. He hired a horse ?
A. Yes, sir ; and ordered me to have Booth's horse ready by seven o'clock
that evening — this bay mare.
Q. What time was it that he got there 1
A. About seven o'clock that evening. It was raining very hard. He came
about three and ordered them.
Q. When he came at seven, what occurred ?
A. He came there ; I was standing in the gangway. It was raining very
hard. I asked him if he was going to the country such a night as that. He
said yes, he was going down to T B to a dance party. I told him it would
have to be a fine dance party that would take me down there such a night as that.
I asked him if he would go over to the Clarendon and get a drink. He said he
thought he had had enough then. I thought so too.
Q. Did Booth come?
A. He had not come yet ; I asked Surratt into the office to sit down.
Q. Did he come in?
A. Yes, sir ; he came in and sat there some few minutes. He told me he was
going down in the country to T B, to meet a party and help them across the river^
that he and Booth had some bloody work to do ; that they were going to kC
Abe Lincoln, the d— d old scoundrel ; that he had ruined Maryland and tb
country. He said that if nobody did it, he would do it himself, and pulled ok
a pistol and laid it on the desk.
TRIAL OP JOHN H. 8URRATT. 207
Q. Was anything said on this occasion as to what he represented ?
A. He Baid he represented two counties in Maryland.
Q. State whether the rain continued ?
A. Yes, sir ; very hard.
Q. Did Booth come ?
A. He came ahout 8 o'clock.
Q. State whether there was any conversation afterward hetween Booth and
SarrattI
A. Mr. Sarratt chastised him for being so late — for keeping him waiting so
long.
Q. Will you explain what you mean by the word ''chastise" ?
A. 1 think he was going to hit him in the face with a glove or something of
that kind — ^in joke, of course. He either hit at him, or hit him, I do not know
which.
Q. Jokmgly ?
A. Yes, sir.
Q. I simply wanted to know whether you used the word "chastise" in the
ordinary meaning of it, or whether you meant to chide — find fault ?
A. Yes, sir ; to find fault.
Q. Were you in Washington on the day of assassination ?
A. Yes, sir.
Q. Have you any distinct memory of what you did on that day ?
A. Yes, sir.
Q. Will you state whether you were riding or walking t
A. I was doing both that day ; I was pretty busy ; I was driving a black horse
that day to exercise him.
Q. At what time in the day ?
A. I Btarted out about two o'clock in the afternoon.
Q. Which way did you go ?
A I went down to the Navy Yard first, and then down to the congressional
burying ground.
Q. When you came back, what street did you come ?
A. I went around by the Bladensburg toll-gate, and came in H street.
Q. Bid you come in late or early ?
A. 1 got to the stable, I reckon, at four o'clock, or a little after four.
Q- Before you got to the stable, when you came down H street, did you meet
anybody that attracted your attention ?
A. I met a great many.
Q. Did you meet any one in particular that attracted your attention ?
A. 1 met John H. Surratt.
Q. The prisoner at the bar ?
A. Yes, sir.
Q. Did you know him very well ?
A. I have known him a good long while — I think I ought to know him.
Q* Was anybody riding with you at the time ?
A. Yes, sir.
Q. Is that person living ?
A. Yes, sir.
^ How was Surratt moving when you met him, on horseback or on foot 1
A. He was on horseback.
^' What kind of a horse was it ?
A. I did not notice the horse much ; I think it was a chestnut-sorrel, a rather
wkish horse.
Q- Is chestnut-sorrel a dark color?
A. Yes, sir.
208 TBIAL OF JOHN H. SURRATT.
Q. State whether you spoke to him }
A. 1 spoke to him and eaid "How are you, John V He nodded to me ; I do
not know whether he spoke or not ; I was jogging along at a pretty good gah.
Q. He bowed to you, and you said, **How are you, John ?"
A. Yes, sir.
Cross-examined by Mr. Bradley :
Q. How was he dressed ?
A. He had on a kind of rusty colored coat ; he had a muffler around his neck,
something like a lady's victorine.
Q. What did he have on his head ?
A. He had on something like a jockey cap crown.
Q. You say it was about four o'clock in the aflternoon, and that you met him
down Sixth street ?
A. No, sir ; on H street, between the Printing Office and the railroad, as near
as I can judge.
Q. Were you examined before the military commission ?
A. Yes, sir
Q. Did you state any single one of the facts you have stated here ?
A. No, sir ; I was not asked ; I was only asked about Booth keeping horses
in my place.
Q. You have seen your examination ?
A. I have seen it since it was printed.
Q. You have not seen it lately, have you ?
A. No, sir, 1 have not.
Q. You say you are a veterinary surgeon ; did you use to train horses and
break horses also ?
A. Yes, sir, sometimes.
Q. When you were before the military commission were you asked about
John H. Sun-att ]
A. No, sir ; I do not think you will find a word in that book in my exami-
nation about him.
Q. Did not you, at that military commission, say that John H. Surratt was at
your stable in the January previous, with Booth )
A. Yes, sir.
Q. Was not your attention called then to John H. Surratt?
A. Yes, sir ; you asked me if I was asked about him.
Q. No ; I asked you if you stated any single fact before that military com-
mission that you stated to-day ?
A. Then I misunderstood you. I thought it was whether they asked me
any question about Surratt. They just called me to ask about Booth's horses.
Q. Then you did state that John H. Surratt came there ?
A. Yes ; I told them too about Arnold's .buying a horse.
Q. Have you told to-day about Arnold buying a horse ?
A. I have not been asked it.
Q. I ask you if you stated anything about John H. Surratt there that yoa
have stated to-day ?
A. No, sir, only in regard to hiring a horse.
Q. Were you not examined by an officer of the government before you were
called to testify as a witness at the arsenal ?
A. Colonel Burnett called me out into the witness room. I told Mr. CottWg'
ham, the man that summoned me, that I would give him $5 to get me off; v^
I had some horses to ship at Georgetown. Mr. Cottingham went and fetched
Colonel Burnett out. He asked what I knew. I was going on to state.
He said he did not want to hear about that ; that I could come the next day
T£IAL OF JOHN H. SUBBATT. 209
I came, and told about Surratt's hiring a horse. Thej sent me to 17th street
to identi^ the horse Booth kept with me.
Q. Did not you know that the great point of inquiry was, who was concerned
in the murder of the President ; and did not you know that John H. Surratt
-vf&s charged as being one of the parties ?
A. I did.
Q. Why did you not tell what you have told the jury here to-day ]
A. I was not asked about it.
Q. You were asked what you knew about Booth and Surratt ?
A. No, sir ; 1 was not asked about Surratt. I told about Surratt's hiring the
"horse on my own motion.
Q. Why did you tell that ?
A. I do not know ; they asked me about horses and I told them about Sur-
ratt. They may probably have asked me if Surratt did not hire a horse from
me. I do not know.
Q. You stated that you were not asked about Surratt at that time, but what
yoa stated about him was of your own accord ?
A. I might ; I do not know whether I was or not.
Q. Why did not you tell at that time all you have told the jury to-day ?
A. I was very glad to get off the stand and get away from the place.
Q. Yet you did tell them about Surratt being at your stable with Booth ?
A. Yes, I told them. I do not think I was asked it.
Q. I ask you again whether you told them anything at all of what you have
Btated here to-day ?
A. I did not tell them anything about the conversation with Surratt I have
stated.
Q- Did you tell them you saw John H. Surratt in this' city on the afternoon
of" the 14th, the dav of the murder ]
A. Ko, sir, I did not.
Q. Did not you know it was of importance to find out whether John H. Sur-
ratt was concerned in the murder or not ?
A. Yes, sir.
Q- Then why did you not tell them what you knew ?
A. I was well acquainted with Surratt and inclined to shield him.
Q- Yet you told them that he was with Booth at your stable ; that he was
toere Using Booth's horse ; and you told them that without being asked ?
A. 1 told them about hiring a horse to go down to the dance party.
Q You told them about Booth's going, and about that little passage between
fiooth and Surratt ?
A' No, sir.
Q' Did you tell them about Surratt being tight that night ; that he had too
"»Qch on board already ?
A. No, sir ; I was scarcely on the stand five minutes, or two minutes.
. H' In that two minutes or five minutes you told them these things without
^^"ig asked?
A. I told them all they asked me.
Q- But they did not ask you about Surratt bemg there, and yet you told
A. I think they asked if anybody used Booth's horses besides himself, and
tii ^^^ ^^^^ ^c let Surratt use his horses ; and I think they might have
pea whether Surratt hired horses. I think it probable they did, but I do not
Q« Then you think it is possible that they might have asked you about Sur-
A. I think so ; I do not know.
210 TRIAL OP JOHN H. 8URRATT.
Q. You think you did not volunteer to state it of your ovirn accord!
A. I do not know whether I did or not, it is so long ago.
Q. Did not you tell us at first that you were not asked questions, but that yoi
told all this without being asked ?
A. I told you at first that I did not tell them anything about the conversa
tion between Mrs. Surratt and myself.
Q. Did you ever take a horse from me to break 1
A. Yes, sir.
Q. Did you sell that horse while in your custody ?
A. Yes, sir.
Q. Did you ever pay me the money for it ?
A. No, sir.
Q. You took him and sold him without my authority ?
A. No, sir.
Q. You had my authority for it ?
A. Yes, sir.
Q. You swear to that ?
A. Yes, sir.
(Examination objected to by district attorney.)
Q. Are you the same Dr. (jleaver indicted, tried, and convicted in this tern 1
(Object^ to by district attorney.)
The Court. The question may be asked; it will be for the witness to say
whether he will answer it
Q. I ask whether you are the same Dr. Cleaver who was indicted, tried, an^
convicted for rape upon a poor little girl in this city, and whether you have nol
obtained an order for a new trial ?
Witness. I cannot answer that question.
The Court suggested that it would be better to bring in the record of hii
conviction if such is the fact.
Mr. Bradley said he had the right to ask the question, and the witness woaU
answer or not, as he pleased.
The District Attorney denied his right to ask the question.
Q. Where have you been for the last month or two I
A. In the city.
Q. Where in the city ?
A. I cannot tell you that.
Mr. Bradley. Will your honor inform the witness whether he is obliged t<
answer the question or not ? He declines to answer it.
Witness. I stated that I had been in the city.
Q. Where in the city ?
A. In different places.
Q. In what different places ?
A. I have been in Philadelphia.
Q. Then you have not been in this city ?
A. Yes, I have been in this city.
Q. Where have you been for the last three weeks ?
A. I cannot answer that question.
Mr. Bradley. I hope the court will instruct the witness that he mustani^*'
the question.
The Court. The question may be put, and if the witness does not choose to
answer it he may decline to answer it. .
Mr. Bradley. Can he decline to answer it unless he states that it would tena
to criminate him I
The Court. Criminate or degrade him.
J
TRIAL OF JOHN H. SUBRATT. 211
After a etatement made by the witness privately, the court stated he was sat-
sfied the witness had a right to decline to answer the question.
Q. Have you recently seen a man by the name of Sanford Conover, other-
vise known as Dunham ?
A. Yes, sir.
Q. Have you been in daily intercourse with him ?
A. Sometimes I have.
Q. In this city ]
A. Yes, sir.
Q. Have you talked with him about this case ?
A. Yes, sir ; I told him all I knew about it two or three months ago.
Q. Did he write down what you told him ?
A. No, sir ; not that I know of— not in my presence. He is a man I very
seldom spoke to.
Q Yet you were in daily intercourse with him, and told him all about this
case]
A. I may have been in his company.
Q. How came you to tell him about this matter ?
A. We were talking about Surratt*s trial, and I got to telling him about Sur-
ratt's hiring a horse of me.
Q. Did you tell Sanford Conover the same things you have told in court
to^aj]
A. Pretty much the same.
By Mr. Mbrrick :
Q- Where was it you saw Sanford Conover 1
A. I decline to state where it was. I believe it was on 4th street somewhere.
Q. Was it on the comer of the street ?
A. No, sir.
Q- Near the comer ?
A. Yea, sir.
Q Juat round the comer from G street, on the left-hand side of Fourth street
"you go up?
A. Yea, sir.
Q- la that where you have been staying for the last two or three weeks ?
^- PiKRRBPONT. I ask the court to instruct the witness as to his right to
anawer.
The Court. I have done so.
By Mr. Bradley:
Q- I want to know whether Sanford Conover is the first man to whom you
^Id the things you have stated in court to-day.
^- No, sir.
Q- Who else?
A. A youne man who was keeping stable for me by the name of Charley
^^. I told him of the conversation they had after they went down the
country together.
Q Did you tell Charley Lewis you saw Surratt in this city on the 14th of
^Pril, 1885 ?
^ I do not know whether I did or not.
Q* You do not know I
A. No ; I saw a great many people in 1865 that I did not tell him about.
x> Are there a great many people in the city of Washington that you know
**^ything about, cWged with complicity in this murder ?
^ No, sir ; not that 1 know of.
H* You do not know where Charley Lewis is t
212 TRIAL OP JOHN H. 8URBATT.
A. No, sir.
Q. How long is it since you have seen bim ?
A. About a year and a half.
Q. Wbere did be belong ?
A. In Connecticut.
Q. Do you know wbere be went wben be left bere ?
A, No, sir ; he went away in a hurry from me.
Q. How long after this conspiracy trial did be go away t
A. Three or four months, or four or five months ; I cannot state exactly the
time.
Q. I want to know the first person to whom you told that you saw John H.
Surratt on the 14tb of April.
A. I may have told a great many — I cannot recollect.
Q. Do you know whether you told it to anybody before you told it to San-
ford Oonover ?
A. No, sir.
Q. Were you at large in the city wben Surratt was arrested ?
A. No, sir; I was in the city.
Q. Have you not been examined in a civil suit in this city since John H.
Surratt was arrested ?
A. No ; it was a few days before.
Q. Before he was brought here ?
A. Yes, sir.
Q. Are you quite sure about that?
A. I know it, sir.
Q. Up to that time, bad you told anybody of this thing 1
A. I might ; I cannot say.
Q. Can you not tell wben you first spoke of a fact so important to the life ox
a man as this ?
A. I did not think it important at the time I met bim.
Q. And you carried the secret for how long a time ?
A. I did not think it a secret at the time I met him.
Q. I do not speak of the time you met bim. During the conspiracy trials
you knew it was an important fact to ascertain whether he was in the city oc^
that day or not ?
A. Yes, sir; and I should not have told it now if it had not been for Oonoyor-
He soon told somebody, and the first thing I knew, somebody came to the jail-
to see me. I got very mad at Conover. I told bim I did not want to ansve^
the question.
Q. Did you say it was in the jail ?
A. Yes, sir.
Q. Who came to see you?
A. I think it was Mr. Ashley, a stoutish gentleman. I asked bim, and be
told me bow be came to know of it. I would not answer the question until be
told me who had told bim of it. I knew I bad not said it to anybody but Con-
over. Wben I went back I never spoke to him for six or seven days.
Q. Then you had a talk with Mr. Ashley ?
A. Yes, sir.
Q. Did you tell him about all these things 7
A. No, sir.
Q. What else did you fail to tell him ?
A. I did not tell him a great many things ; I never told him of the sale «
Booth's horse to Arnold.
Q. Did Mr. Ashley write down what you said 1
A. No, sir.
TRIAL OP JOHN H. 8URRATT. 213
2. Did he have paper when he came in ]
i. Not that 1 know of; I never saw any.
}. Was he in Sanford Conover's company ?
i. No, sir.
J. Did you not see him in SanPord Conover's company at other times ?
L I never saw him in his company in my life.
By Mr. Pierrepont.
2. You have heen asked about the sale of a horse to Arnold. What was
a
tfr. Merrick. We have not asked that.
dr. Pierrepont. It came out in some way in cross-examination,
rhe court ruled that the question might be asked.
k. Booth came down to the stable on the 27th or 28th of January and paid
livery ; I think to the 26th. Then he came about the 27th or 28th and
A his livery up to February 1, and Sam. Arnold in company with him. He
m told me, in Arnold's presence, that he had sold the horse to Arnold, and
It Arnold was to pay the livery from that time on.
Q. Now, about Booth's order you spoke about, what did that mean ?
(Question objected to as not relating to what was brought out on the examination
chief. Objection sustained.)
By Mr. Bradley :
Q. Who was the Mr. Ashley who called on you at the jail ?
A. I don't know him only by that name. I believe he is a member of Con-
TW8. I never saw him before in my life.
Q. What sort of a looking man is he ?
A. A stoutish man.
Q. Did you understand he was a member of Congress ?
A. Yea, sir ; he told me who he was.
Q. Have you received any offer of favor or reward for the testimony you have
iven in this case ?
A. I have not, from anybody.
Q. You are quite sure of that ?
A. Yes, sir ; I have not, from anybody.
By the District Attorney :
Q. And we understand you to say you had no idea of revealing this ?
A. I did not ; I told it to Conover confidentially.
Mr. Eddy Martin sworn and examined.
By Mr. Pierrepont:
Q. State your residence and occupation.
A. I reside in New York. I am a commercial broker.
Q. In the year 1865, did you go down to Port Tobacco from the city of
rashington ?
A. Yes, sir.
Q. Now state briefly what occurred there, and what you saw connected di-
ctly with the prisoner at the bar.
A. I went to Richmond, and I will state the circumstances under which I
?Dt, if you will permit me. In the fall of 1864 a gentleman went to Rich-
>nd and consulted with the confederate authorities there in regard to the dis-
?i'tion of the entire cotton crop of the south. On his return, in company with
ne persons, personal and political friends of Mr. Lincoln, he called to see Mr.
icoln, and had a consultation with him in reference to it.
214 TRIAL OP JOHN H SURRATT,
Q. Were you there ?
A. No, sir ; I have seen the affidavits of the parties.
Q. Then you need not go into anything in regard to that — growing out of
that. You went down there ?
A. Yes, sir ; and it will take me but a moment to state the facts and circum-
stances under which I went. I think it is my right to do so. I think you
promised it to me.
Mr. PiBRRBPONT. I have no objection, if it is legitimate.
Mr. Bradley. There is no objection on the part of the defence.
Witness. Mr. Lincoln expressed a desire to see this thing consummated.
He suggested a certain course to be pursued, in which our government should
not be directly connected with it. The confederate government wanted to treat
directly with Mr. Lincoln. He objected to that ; he said he would not recog*
nize them and he would not treat with them, but that if these gentlemen, or any
association of individuals, could ent«r into arrangements to purchase the cotton
and tobacco in the south, he would guarantee them the protection of the gov-
ernment and afford them every facility for carrying out that arrangement. At
the close of the interview these gentlemen asked for a pass to return south, and
consummate the affair. Mr. Lincoln said he would rather not give a pass ; bat
that they had been there once, and he guessed they could go again. In the
month of December these parties came and laid the facts before me ; asked me
to take hold of the business, and prosecute it to its consummation. Afler con-
sideration, I agreed to do so, believing I acted with the tacit consent of the
President, if not his full approval.
Mr. PiBRRBPONT. And the reason you asked to make this statement was in
order to show that you were there legitimately ?
A. That is precisely the reason. By the time I got there
Mr. PiBRRBPONT. That is sufficient to show your reason. Now please state
what occurred.
WiTNBSS. I think I have a right to complete this explanation. Judge Piarre-
pont promised me I should.
The Court. As it will probably take less time for the witness to complete
his statement than to argue the question, I think he had better be allowed to
go on.
WiTNBSS. I went to Richmond ; but so long a time had elapsed afler the
original proposition, that they declined to carry it out as first proposed, but ex-
pressed a desire that I should purchase cotton freely, which I did to the extent
of about 86,000,000, and obtained the refusal of about $15,000,000 worth more.
I came back to Washington, and reported promptly what I had done. There
was nothing criminal or irregular in it. It was done with the tacit consent of the
President.
Q. And that was the reason of your going 1
A. Yes, sir.
Q. Now go on and state what relates to this subject.
A. While in Port Tobacco, I remained for ten days, in order to get an oppor-
tunity to cross the river. I employed a man by the name of Andrew Atzeiwt»
and paid him to make some arrangements for me to cross the river.
Q. Was that his full name 1
A. I do not know ; he went by that name.
Q. Was his name George A. ]
A. I presume so ; he went by the name of Andrew.
Q. There was no doubt about the other name being Atzerodt ?
A. I think not. I heard his name, and recollect asking him once if it vtf *
Russian name. He tried to make arrangements for me to cross, and went down
TRIAL OF JOHN H. 8UBRATT. 215
the river eeveral times. I paid him for hi8 trouble, and finally abandoned the
idea and left there. I did not cross there at all.
Q. What time was that ?
A. About the 10th of January, 1865; from the 7th to the 15th.
Q. Who else did you see there connected with this conspiracy ?
A. I saw Surratt there on one occasion.
Q. Tell what you know about it ; what was said or done.
A. I had no particular conversation with him. I was introduced to him. He
did not refer to his businees, and I do not think I did to mine. On one evening
after dark a man told me that a party was just about to cross over. 1 said I
would like to be introduced to him. He said he would do so. In probably
fifteen or twenty minutes he came in and said he was mistaken ; that they were
not going to cross. During the evening I was introdnced to Surratt. No par-
ticular conversation passed between us. I may have told him I was going to
cross the river. I think I did. I remained that night. The next day when
be came in to supper he had on his leggins. I asked him if he was going. He
said he was going back to Washington ; that he was employed in Adams's ex-
press office ; that he had three daysMeave of absence j that his time was nearly
expired, and that it was necessary for him to start back that night.
Q. State whether you saw he and Atzerodt speak together.
A. I am not positive whether I saw them speak at all with each other.
Q. Did you see them after that day ?
A I did not see him after this conversation at the supper table, and have not
seen him since till I saw him here.
Q. Did you see Atzerodt afterwards ?
A. Yes, sir. I remained two or three days and tried to get across. I saw
wm there all the time I was there.
Q. Did you see him on the other side ?
A. Never.
Q. Did you see either of them on the other side ?
A. I never saw or heard of either of them on the other side.
Q. Did you see either of them at any other place, at any other time, that you
'finiember of ?
A. I did not.
Q. You did not know Payne 1
.A. No, sir.
Q. Did you know Herold ?
A. No, sir, I did not.
Q. You had other conversation with Atzerodt, did you ?
A. I did the night Surratt left there. I was losing confidence in Atzerodt.
1 thought, although I had been paying him tolerably liberally, that he had been
throwing off on me. I staid up pretty late that night. He came to the hotel
*hout 11 o'clock. I accused him of intending to cross over that night with other
P^ies ; told him I had been paying him all that he asked, and that I must
^88 hy the first boat. He denied that anybody was going to cross that night.
1 reiterated the charge I had made of duplicity upon his part. He then made
^is explanation : He said no one was going to cross that night, but on
^ednesday night a large party would cross of ten or twelve persons ; that he
had been engaged that day in buying boats ; that they were going to have
j^layg of horses* on the road between Port Tobacco and Washington. Said I,
"What does this mean ? " He said he could not tell. Alter a moment I said
^ supposed that confederate officers were to escape from prison, and that he had
^^ arrangements to cross them over into Virginia. He said •• Yes, and I am
^H to get well paid for it."
Q- Wbeu you asked him first what it was, he did iiot tell you ?
216 TRIAL or JOHN H. 8URRATT.
A. No ; he said he did not know, or something.
Q. But when you made this suggestion he agreed to it ?
A. Yes ; he assented to it in a moment.
Brooks Stabler sworn and examined.
By Mr. Pierrepont :
Q. What was your occupation from the first day of January until the fira
day of June, 1865 1
A. I was in a livery stable ; taking charge of a livfer^ stable.
Q. Whose stable was it ?
A. John G. Howard, on G street, between 6th and 7th.
Q. Do you remember the number ?
A. I do not.
Q. Did you know John Wilkes Booth ?
A. I did.
Q. Did you know John H. Surratt ?
A. I did.
Q. Did you know George A. Atzerodt T
A. I did.
Q. Did you see them at your stable 1
A. Frequently.
Q. Did you see them all together there ?
A. I have seen them together, and separately.
Q. What did you see them doing ?
A. They were talking, sometimes.
Q. Talking together?
A. Yes, sir.
Q. State when you first saw John Wilkes Booth at your stable, as near «
you can remember.
A. I cannot remember exactly the time ; it was about the time Surratt entered
his horses at that stable in my care.
Q. When did Surratt put his horses at that stable in your care ?
A. That, I think, is stated in my testimony on the other trial ; I do not re-
collect it now.
Q. Can you state whether it was about February, 186/5 ?
A. It was along about that period.
Q. In what manner did Surratt put his horses in your charge ?
A. He left them there to be taken care of — to be fed and watered.
Q. How many were there ?
A. Two.
Q. Will you describe these two horses ?
A They were both bay horses. One was an ordinary horse ; the other was
a rather fine horse — saddle horses.
Q. Were both horses, or one a mare ?
A. Both horses.
Q. What was the direction he gave you about them ?
A. His direction was that he wanted them taken care of in the best manner!
could.
Q. In reference to their use, what did he direct ?
A. That they were not to be used except by his order.
Q. Did he give you any order about their use ?
A. He gave me an order on one occasion for Booth to use them ?
Q. What did he say in giving that order ?
A. His directions were that Booth and no one else was to have his horses, b»
that Booth could get them at any time.
TRIAL OF JOHN H. SURRATT. 217
Q. Booth could get either horse at any time ; he did not mention any one 1
A. I do not recollect that he did ; Booth usually got one horse.
Q. Which one ?
A. The better one.
Q. When these men came, did they come together or separately ?
A. Sometimes two of them would come, and I believe all three of them have
come together.
Q. How was it generally, did they all come together or separately 1
A. There were generally two of them.
Q. How often in the course of a day were they there sometimes ?
A. Two or three times a day sometimes.
Q. Did yon see Atzerodt ride out with Surratt on any occasion ?
A. I did on one occasion.
Q. Did you have any written order from Surratt.
A. I had one.
Q. Have you it with you ?
A. I think I have ; (paper produced.)
Q. Do you know who brought this note t
A. I did not know the gentleman
Q. it was brought by a gentleman was iti
A. I never saw him before or since.
Q. You know the handwriting ?
A. It is Surratt's handwriting.
Mr. PiERREPONT read the note as follows :
«* March 26, 1865.
"Mr. Brooks : As business will detain me for a few days in the country I
thought I would send your team back. Mr. Bearer will deliver in safety and
CJ 9ie hire on it. If Mr. Booth, my friend, should want my horses, let him
^e them, but no one else. If you should want any money on them, he will let
you have it. I should have liked to have kept the team for several days, but
H is too expensive, especially as I have women on the brain and may be away
^w a week or so.
" Yours, respectfully,
"J. HARRISON SURRATT."
Q- Will you state what team this alludes to ?
A. The team I hired to him.
Q. What team was it ?
A. A horge and buggy.
Q- This was on the 26th of March ; how long prior to that did you let him
we the team ?
A. The day before, perhaps ; I could tell by reference to my books.
Q. Did he tell you where he was going with it ? and if so, where ?
A. I think not ; I do not think I knew where he was going then.
Q- Who did you see Surratt ride out with from your stable with any of the
A. I have seen him ride out with Booth, and I have seen him ride out with
Atzerodt.
Q- Did you receive any other note from John H. Surratt t
A. Not that I recollect of now.
Q' I allude to the one produced on a former trial ?
A. I may have received several.
\' Do you recollect Mrs. Surratt sending a note to you ?
^ Sending an order for a horse and buggy.
\' Who did you see ride out on that order sent by Mrs. Surratt ?
218 TRIAL OF JOHN H. SUBRATT.
Mr. Merrick. We do not know that there is any such note.
Mr. PiBRRBPONT. 1 eupposed the note was here ; I believe it is attached
the record of the military commission. I will therefore waive that quebti
until it is here. '
Q. Please state whether in the spring of 1865, or in April, 1865, you had ai
conversation with Atzerodt about Surratt ?
Mr. Bradley. As that conversation, I presume, is the same as that stated
the book containing the assassination trial, I will ask the court to examine
and determine whether it can properly be admitted in evidence or not.
Mr. PiERRBPONT. I suppose the statement there is substantially what the w
ness will say.
Pending the decision of the question, the court took a recess until to-morrc
at 10 a. m.
Friday, June 21, 1867.
The Court met at 10 a. m.
Mr. Merrick presented to the court affidavits of the prisoner, asking that tl
witnesses Carroll T. Hobart, Charles H. Blinn, and Sergeant Joseph M. Dye 1
recalled.
After examining the affidavits, Judge Fisher said that he had carefully note
their contents, and had also considered the arguments submitted by counsel yei
terday. His views were that the custom which had always prevailed was m
rect ; that a witness should consider himself discharged afber examinatioo
unless told to remain. lie thought it better to pursue the common practice.
Mr. Merrick desired to know if the witness could be cross examined if bron^
here by the defence.
The Court said that he could be examined as a witness for the defence.
Mr. Merrick said he underptood counsel on the other side to agree that if th
witnesses were here they could be cross examined.
The Court said that that was a subject for agreement between counsel.
Mr. Merrick inquired if he understood the court right, that the bail bondo
Dye could be offered in evidence.
The Court said that that was a subject for future consideration. He hn
only remarked that that was the way to prove it.
Edward L. Smoot, recalled. Examination resumed.
By the District Attorney :
Q. Will you state if you made any erroneous statement, or whether yo
made any mistake in your testimony of yesterday, which you desire to correct
A. I have been told since I got off the stand yesterday that I was mistake
as to the gentleman who examined me up at Winder's building. I said yesterdaj
in reply to a question put by Mr. Merrick, that I was there examined by tw
gentlemen — one a young gentleman and the other an old one. He then aske
me their names. I told him I did not know the name of either, but that I hem
after I left the room that the elderly gentleman was Judge Holt. Some of tin
witnesses who went up there with me told me that the older gentleman of ik
two was Judge Holt. I never saw Judge Holt in my life to know him.
By Mr. Merrick :
Q. Just describe the gentleman who examined you.
A. The gentleman was sitting down at the time, and did not get up at vL
I was questioned first by the young gentleman. I saw him this moroing» lod
he tells me his name is Colonel Barr. They both questioned me.
Q. Describe the old gentleman.
i
TBIAL OF JOHN H. 8URRATT. 219
Mr. PiBRRBPONT. I Bubmit to your honor whether that is a proper question.
The Court. I will saj that I supposed there would be some end to this
matter of inquiring as to who has examined witnesses. It is altogether wrong.
It is a needless waste of time ; and I here take occasion to say, that if any
government officer did not use due diligence, in an important trial, to find out
what he could prove by witnesses, he would be very derelict in his duty. If
I were a public officer prosecuting causes, I should feel it my duty, in every
important case, to see and examine the witnesses ; and a lawyer who does not
do 80, in my estimation — I may be wrong— does not do his duty to his client.
Mr. PiBRRBPONT said it was the duty of the government to prosecute crime,
and find out who committed it. If a government could not protect its citizens,
sach government could not protect itself.
Mr. Bradlbv thought the government had abundant means in the judicial
department, without bringing in extraneous aid from any other branch of the
government, to seek out and to bring to punishment criminals. He thought it
the duty of every citizen to communicate any facts ; but he solemnly protested
against any secret tribunal to investigate proof, and probably to create proof.
He agreed that as to matters connected with the army Mr. Holt had authority ;
but he denied that Mr. Holt, or the War Department, had a right to investigate
matters as to private citizens. There was a great difference between now and
three vears ago, when a great struggle was going on in the country. Under
what law did Mr. Holt undertake to examine into a case pending in a civil
tribunal ? If there was such authority, he called for the statute. Judge Holt
wag a private citizen. The prosecution must show some authority for Mr. Ilolt's
investigating matters.
Mr. Mbrrick said it must be shown that the party examining was a duly
authorized attorney of the United States.
The Court said they could proceed with the examination of the witnesses ;
tbat it was proper to ask a witness who he had spoken to concerning the testi-
i&ony he would give, with a view of showing that he had said on another occa-
sion something diffei'ent from what he had said on the present one. He only
desired to intimate to counsel that a great deal of time was taken up in examin-
ing into matters of this sort, where there did not appear to be any point in the
question.
Mr. Bradley stated that, whenever the court required it, they would always
disclose the object of their question; but he would submit that, on cross-
examination, it had the effect to cut the throat of the examination, to be called
upon to make known the object of the question.
Examination resumed by Mr. Merrick :
Q. Describe the elderly gentleman.
A. He was sitting down at the time he was examining me, and I couldn't tell
whether he was a very tall man, or not. He was an old gentleman, however ;
his haur was gray. It was not white, but it was a silvery gray.
Q. Was it long?
A. Yes, sir, it was rather long, tolerably so. He had a little gray beard just
on his jaw.
Q- Was there anything remarkable about his face that you observed ?
^' I did not see him full in the face. I was sitting just between the two
gentltmen. I saw his side face only.
Q- Did he have a heavy, large head ?
^' I did not notice it particularly.
\' Did you notice his nose ?
A. Not particularly.
220 TRIAL OF JOHN H. SUBRATT.
Q. In what room were you examined?
A. If I am .not mistaken, while in the passage-way, looking round, I saw over
the door the words, "Judge Advocate General's office."
The District Attorney. If your honor please, I think it proper for me to
state that the Judge Advocate General is not examining witnesses in this case;
not assisting us at all.
Mr. Bradley (to the court.) If so, let him state it under oath.
Brooke Stabler. Examination resumed.
By Mr. Pibrrbpont :
Q. Yesterday you produced this letter of March 26, 1865, from Mrs. Surratt*
Tell us what that team was that came back with this letter ?
A. It was a horse and buggy.
Q. Were there two horses ?
A. There was one horse and buggy.
Mr. Bradley. I object. That was all brought out yesterday.
Mr. Pierrepont. It was, and I am coming to that. I think he was mistaken
about the team.
Q. Will you tell the color of the team ?
A. That I cannot
Q. Can you tell whether they were gray or white horses 1
A. I do not recollect of his having a double team but once, and I do not think
that was the time.
Q. What was the double team 1
A. I cannot put them together now.
Q. Can you state what color the double team was ?
A. I do not recollect.
Q. Can you tell whether you had a team of white hoises, or gray, at that
time?
A. I had one that was sometimes put double — ^rarely two grays together.
Q. Were you accustomed to speak of a siugle horse as a team ?
A. 0, yes ; that was a common thing.
Q. Will you name the persons you saw at your stable conversing together
with Surratt 1
Mr. Bradley. I object. That all came out yesterday.
Mr. Pierrepont. He may not have stated them all. Name the persons, if
you please.
A. I have seen Booth, Atzerodt, and Herold.
Q. With whom ?
A. With Surratt.
Q. Did you omit any name yesterday ?
A. Yes, sir ; Herold's name was omitted yesterday.
Q. Did you have any conversation with either of those men in relation to
Surratt's trip anywhere; and if so, what was it ?
A. I had with Atzerodt.
Q. State what it was.
A. He showed me the conclusion of a letter which he had received froU^
Surratt, stating
Mr. Bradley. Never mind that.
Mr. Pierrepont. You can state what Atzerodt said. What did he say ?
A. He told me that he had a letter in his hand from Surratt, but that he wool^
not let me see it all. He opened it, and the concluding paragraph I read.
Q. What further did he say?
A. He said that in that letter
"'- Bradley. I thought you said that you read that part of the letter.
TRUL OF JOHN H. 8UBRATT. 221
Mr. PiBRREPONT. I am not asking him as to what he read, but as to what
Atzcrodt said to him regarding the contents of that letter. He ^as a right to
tell OS what Atzerodt said to him.
The Court. Whatever Atzerodt said is testimony, whether he said it was
in the letter or not. His sajing so and so was in the letter would not put it
there ; nor his saying so and so was not there would not take it away if it was
there. The object, as I understand it, is to get at the conversation.
Mr. PiBRREPONT. Will you state what he said ?
A. He told me that he would not show me the letter — the body of it — ^but
that he would show me the latter part of it. He stated that the letter was dated
in Richmond, and that he had understood that the detectives were after him, and
be was making his way north as fast as he could. That is about the amount of
what Atzcrodt told me.
Q. Did he say anything farther ?
A. Nothing more than a reiteration of the same. He said it over two or
tliree times. He positively refused to show me any more of the letter than that.
Q. Did he, at the time of this conversation, state where Surratt then was 1
Mr. Bradley. If your honor pleases, I think it is time to interpose an ob-
jection to this line of examination. The witness has stated that Atzerodt showed
to him a letter which he said was dated at Richmond, and which contained what
the witness has repeated. To follow it up looks very much to me like a cross-
examiuation.
Mr. Pirbrepont. I have a right, I suppose, to call his attention to specific
matters, such, for instance, as to inquire whether he stated where Surratt was ?
The Court. You have a right to put such questions as will have the effect
to refresh his memory, but not to put them in such a form as to render them
leading.
Mr. PiBRREPONT. I will then make the question more general.
Q. Will you state how the conversation between yon and Atzerodt com-
menced ?
A. He called me out on the edge of the pavement and told me what he had.
Q. Did you ask him anything 1
A. Nothing more than to let me see the letter.
Q. And when he declined to do so, what did you say further, if anything ]
A. I do not recollect saying anything particular.
Q. Was there anything said as to where Surratt was at the time of this con-
versation ? If so, what was it ?
A. There is nothing on my mind now that I can recall. I do not think there
^as any impression made on my mind that would lead me to say where he was.
He did not say.
Q- Did he say anything that explained to you what he meant by making his
^ay north — north from what point ?
A. North from Richmond.
Q- Did he say anything more to you in relation to the difficulty that Surratt
^aain? and if so, what?
^ That is the only difficulty that he spoke of — ^about detectives.
Q* Did he name to you whose detectives they were — whether they were
tolonel Baker's, or any other squad ?
^ I do not recollect whether they were Colonel Baker's, or whose they were
I'^government detectives.
Y ^^ did not name whose particular squad that you remember 1
^ No, BUT ; I do not recollect that he did.
^ You say government detectives— detectives of what government 1
A- Government of the United States.
222 TRIAL OF JOHN H. SURRATT.
By Mr. Bradley:
Q. Do you mean Atzerodt said United States detectives, or was that your in-
ference from what he said ?
A. I mean that he told me that the detectives were af^er him.
Q. And you understood they were government detectives ; but I do not un-
derstand you to say that he told you they were government detectives 1
A. I do not recollect that he said government detectives, but that is what he
meant.
By Mr. Pierrepont :
Q. Preceding that, did you have any conversation in relation to the payment
of any bill ?
Mr. Bradley. Conversation with whom?
Mr. PiEHREPONT. Why, with either of those parties ? To the witness. Idonot
mean to ask you with regard to anybody else, except some one of those that you
have mentioned ?
A. I think I had a letter from Surratt, telling me, in his absence, to call upon
Booth.
Mr. Bradley. Wait a moment. Where is that letter ?
Mr. Pierrepont. I have not yet asked the witness about the letter. I am
going to, but I do not choose to interrogate him about it at this point.
Q. I ask you what conversation you had in March, at the stable, if any ?
A. I do not know that I can particularize anything. There was frequent talk
about our money matters. Surratt would frequently ask me if I wanted any monej.
Q. I will call your attention to the time when Atzerodt took away a blind
horse, if any sucn thing ever occurred. Do you remember of any such thing ?
A. I do.
Q. About when was it that he took away the blind horse ?
A. As to the time, I cannot tell you.
Q. Can you tell about the time 1
A. No, sir, I cannot.
Q. Blind of one eye, I understand this horse was ?
A. Yes, sir.
Q. What kind of a horse was it ?
A. It was a saddle horse — a fine racking horse.
Q. Was there any other horse taken away at the same time 1
A. There was a bay horse.
Q. What kind of a horse was that in size ?
A. Lighter than the other.
Q. Why did Atzerodt take away those horses 1 Who claimed to own themt
Who was the owner, in fact ?
A. They were Surratt's horses — entered by him, at least.
Q. Who paid for their keep ?
A. Booth.
Q. Were these two horses returned afterwards ?
A. No, sir.
Q. I do not mean to keep, but for any purpose ?
A. They were brought there by Atzerodt to sell.
Q. That is what I am asking about. Did they succeed in selling them?
A. They did not.
Q. Then what was done with them ?
A. He took them away.
Q. Who took them away ?
A. Atzerodt.
Q. When did you last see this one-eyed horse — this fine racker?
A. I saw him in the government stables on 19th street.
TRIAL OF JOHN H 8URBATT. 223
Q. When ?
A. DnriD^ the trial at the arsenal
Q. What ie called the conspirators' trial ?
A. Yes, sir. I went up there at the instance of the judge advocate, to see if
he was there and to see if I could recognize him.
Q. Did you ?
A. I did.
Q. Please state whether that is the written order of which you have spoken
heretofore. (Handing witness a paper.)
A. (After examining the paper.) That is it.
Q. In whose handwriting is it ?
A. John H. Surratt's.
Mr. Bradley. Did you ever see him write?
Witness. Yes, sir. More of these papers are on file now, I presume. I put
them away. They are orders and directions of various kinds.
Mr. Mb R RICK. What is that paper marked ?
Mr. Wilson. "Exhibit 27."
Mr. PiERREPONT. I will uow read this note to the jury.
He then read as follows :
"Mr. Howard will please let the bearer, Mr. Atzerodt, have my horse when-
ever he wishes to ride; also my leggings and gloves; and oblige, yours, &c.
(Signed) "J. H. 8URRATT,
"541 H street, between Sixth and Seventh streets.
"Feb. 22, 1865."
Q. Will you now state to the jury whether you acted on this order, and did
let him have the horses under it ?
A I did, until that order was rescinded.
Q. When these horses of Surratt's were taken from the stables who took them
away]
A. Mr. Booth took them away.
Q. Who paid for them?
A. Booth.
Mr. PiERREPONT. It is possiblc that you have stated, when they were brought
hack to sell, who took them again. If so, I do not want it again.
A. I have.
Q- In reference to the men coming to your stable, to what part of the stable
aid they go ?
A. They went down to the lower end of the stable.
Q' That was the back part ?
^' Yes, sir.
Q- What did they do when they got down to the back part of the stable ?
A. That I do not know. They would be conversing together. Frequently
Q- Will you state what the manner of the conversation was, so that these
S^Btlemen can understand it ? I mean as to whether it was in a loud or in a
^nfidential, whispering tone.
^- They would generally be about 150 feet from me; from 100 to 150 feet,
o^ttietimes I would see them when they would be down there ; at other times
^<>^(i not ; I would be busy in the office.
J Could you hear anything they said ?
^ No, sir.
J- What was their manner of conversation ?
^ ^t was not so that I could hear any voice at all.
y It Was hi a low tone, then ?
^' Well, the usual tone, I suppose ; I could not tell from the distance I wa».
^* Tou could not hear anything that was said ?
224 TRIAL OF JOHN H. SURRATT.
A. No, sir. I could not hear anything of tbe conversation, of course. They
would be further from mo than the length of this room.
Q. Their appearance indicated conversation 1
A. Yes, sir; indicated conversation, of course.
Gross-examination bj Mr. Bradley:
Q. You say those horses were claimed by John H. Surratt when they were
taken away by Booth. Was it under any claim of ownership ? When they wer^
taken by Booth who paid for their keep ? Did he take them away, or claim that
he had purchased them 1
A. He took them away after I had received information from Surratt that he
would take them away and pay for their keep.
Q. Was anything said about their having been sold ?
A. Not that I recollect of now.
Q. You say Booth paid for them when he took them away. Had not Smrratt
before that paid for them from time to time ?
A. He had paid previously, certainly.
Q. When you say that Atzerodt held that letter in his hands and stated that
it was dated Richmond, do you recollect whether he did not tell you that Surratt
had been to Richmond, and on his way back had had a dif&culty, and that
the detectives were after him ?
A. I saw the date of the letter myself. He may have said that.
Mr. Bradlbv. Never mind about that; I want to know what Atzerodt said.
I want to know whether Atzerodt did not tell you that Surratt had been to
Richmond, and coming back had got into difficulty, and that the detectives were
after him, and that he was making his way to the north ?
A. The idea conveyed to my mind was that he had heard the detectives were
after him, and that he was about to leave, or may be, had left Richmond.
Q. You were examined before the military commission about the middle of
May]
A. Yes, sir.
Q. Your memory was fresher then than it is now ?
A. On some points it was.
Q. Do you now recollect with any distinctness what time in April that con-
versation occurred ?
A. I cannot tell you the time precisely. I cannot say whether it was in April
or not. I only recollect the circumstances.
Q. You have stated before that in the early part of April Atzerodt told me so
and so. Is that your recollection now, that it was the early part of April ?
A. It must have been in the early part of April, or previous to that. I do
not recollect dates very well.
By Mr. Pierrepont. You stated to the counsel that you saw the date of
the letter.
Mr. Bradley. That was not in answer to any question of mine; and,
therefore, I do not think it proper that you should refer to it at all. I told the
witness at the time that I did not want him to state anything about that, but only
to state what Atzerodt said ; and I will now ask the court to tell the jury th«t
that is not evidence.
The Court. Of course, gentlemen, that answer of the witness is not evidence.
You will understand that.
Mr. PiKRREPONT. I will not ask the witness the question I intended, but wiM
put another.
Q, I simply want to ask you one question, and that is regarding your name-
There seems to be some misunderstanding among us both in regard tu it.
A. My name is Brooke Stabler.
TRIAL OP JOHN H. SUBBATT. 225
Q. Do you go by the name of " Brook" or " Stabler*' generally, when spoken of ?
A. Familiarly they call me by my first name, "Brook."
By a Juror :
Q. Is it not a very common thing for gentlemen who keep horses in your
Rtable to walk to the end of your stable ?
A. Many do.
Jambs W. Pumphrky, livery-stable keeper — residence, Washington — sworn
and examined.
By the District Attorney :
Q. Where do you reside ?
A. I reside at No. 252 C street.
Q. State your business, and your place of business.
A. I am keeper of a livery stable, 244 C street, between Four-and-a-half and
Sixth.
Q. In this city?
A. Yes, sir.
Q. How long have you been doing business there ?
A. I have been in business about eleven years.
Q. State if you knew John Wilkes Booth.
A. I did.
Q. State when, where, and under what circumstances you first formed his
acquaintance.
A. John Wilkes Booth came to my stable one day for a saddle-horse. Ho
aaked for the proprietor; I stepped up and told him I was the man. He said
te wanted a saddle-horse to ride for a few hours. I cannot tell the exact day
that he jcame there. I did not know at the time it was Booth, but found out
that it was after talking with him a short wbile. He said he wanted a sad-
dle-horse to take a few hours' ride in the country, I told him I could let him
have one. He said he did not wish any but a good one. I told him I had a
very good saddle horse, I thought. He then said : " I wish you would have
him saddled." I ordered him saddled, and then said to him : *' You are a
Btranger to me ; and it is always customary with ine when I hire a horse to a
Rtranger to havp him give me some security, or some satisfactory reference."
At that time Mr. Surratt — I do not know whether he stood across the street, or
came over
Q. The prisoner ?
A. Yes, sir. Surratt said he knew him ; that it was Mr. Booth, and he would
t*ke good care of the horse. I cannot now tell whether the prisoner came over
Md said this to me, or stood on the opposite side of the street and hallooed
across.
Q. How long have you known the prisoner ?
A. A great many years.
Q State as near as you can all that Surratt said at that time.
A« I think he said he would see mc paid for it ; that he was going to take a
nde with Mr. Booth.
Q. Go on.
A. That is about all. I went in and ordered the horse to be saddled and brought
^ There were some gentlemen sitting in front of my stable at the time,
"ho they were I do not know.
Q* What kind of a horse was it ?
- A, A light sorrel. When I came out with the horse saddled, he wa^s gone.
* *«ked some of them out at the door where he went ? They said they thought
^^ Went to the Pennsylvania House. The boy stood at the door with the horse
226 TRIAL OP JOHN H. 8URRATT.
and I stood out there, watcbin^ for him. I saw him come out of the Pennsjl-
vania House. He came out alone, and came over and started off on the horse
alone.
Q. Where is this Pennsylvania House 1
A. It is on the south side of G street, between Four-and-a-half and Sixth,
opposite to the old Exchange Hotel.
Q. Will you state the next time you saw John Wilkes Booth 1
A. I could not tell the date when he next came to my stable.
Q. When was it you had this interview — how long previous to the assas-
sinatiou of the President ?
A. I really forget — ^may-be six weeks or two months before. May-be a little
more and may -be a little less. I cannot tell the exact time.
Q. State the next time you saw the prisoner.
A. I do not remember of ever seeing Mr. Surratt after that. He never called
at my stable after that time.
Q. State the next time you saw John Wilkes Booth.
A. That I could not do ; but it was not a great while — may-be a week or ten
days, or two weeks. He was in the habit of coming to my stable and hiring
horses after the time to which I have alluded. He generally rode the same
horse ; always when he could get him.
Q. I will ask you if you saw him on the 14th of April, 1865 ?
A. Yes, sir. He called at my stable that morning.
Q. State what time it was you saw him.
A. Somewhere between 11 and 1 o'clock, as well as I can remember. I
did not pay much attention to the time. He called for a saddle horse, stating
that he wanted to take a ride that afternoon. He expressed a desire to have
the same horse that he had been in the habit of riding. I told him he was
engaged, and therefore he could not have him. He wanted te know if I could
not put the person off to whom I had engaged him, and let the man have the
horse that I was to give him. I told him I could not do that. He then wanted
me to give him a good one. I told him that the horse I was going to give him
was a very good saddle horse. I told him I thought so, and he would think so
after he had ridden him. He says : " Well, don't give me any but a good one."
I told him I wouldn't ; that I would give give him a little mare ; that she was
small, but a very good one.
Q. What color was the mare ?
A. She was a bay mare, about fourteen hands high. I put on her an English
saddle, and a snaffle-bit bridle. I have never seen saddle, bridle, or Booth since.
Q. Did you ever see the prisoner afterwards ?
A. I never saw Mr. Surratt from the first time he came there with him. I^
I did, I do not remember it. He never called at my place.
Cross-examination :
By Mr. Bradley :
Q. You say that you have been in business eleven years 1
A. Yes, sir.
Q. Did you keep a stable at the comer of Sixth and C streets 1
A. I did. I went there in 1856.
Q. Did you ever see Mr. Surratt there ?
A. I have seen Mr. Surratt come with his father very often to that corneri
and where I am at present. -
Q. How large was he then 1
A. He was very small. I went to keep the stable in 1856.
Q. At what time did you go where you are]
A. In 1858. Surratt was but a small boy when I first knew him.
TBIAL OP JOHN H. 8URRATT. 227
The Court. A small boy in 1858?
Mr. Bradlby. Yes, sir. He is only 23 or 24 years old now.
Q. You say you took charge of the stable where you are now in 1858 t
A. Yes, sir. October 5, 1858.
Q. Did you ever see Mr. David Reed about that stable 1
A. He has been there ; but he never stopped over five minutes. I do not think
he was ever there more than half a dozen times in his life.
John Flbtcukr — ^residence in Washington — sworn and examined.
By Mr. Pierrepont :
Q. Where do you reside 1
A. At Tim Nailor's livery stable, upon E street, between Thirteen-and-a
half and Fourteenth streets.
Q. Where did you reside on the 14th of April, 1865 ?
A. At Nailer's stable.
Q. At the same place 1
A. Yes, sir.
Q. On the 14th of April, 1865, did you see Atzerodt and Herold?
A. Yes, sir.
Q. State where you saw them and what occurred.
A. I saw them at Nailer's stable, but not together.
Q. Who did you see fii-st ?
A. Atzerodt.
Q. Subsequently, did you see Herold t
A. In about an hour after.
Q. Will you state what Herold did 1
A. He engaged a horse of me.
Q. What did he say ?
A. He wanted to kiiow what was the price.
Q. How long did he tell you to keep it, or did he tell you ?
A. He told me to keep it for him until ten minutes past 4 o'clock.
Q. Bid he come there at that hour, or about it ?
A. Yes, sir.
Q. Then what did he say ?
A. When he came in he asked me if I had the horse ready, and I told him
I Ud. He asked me how much I charged, and I told him $5.
Q. Did he tell you what he wanted the horee for ?
A. He told me he was going to ride with a lady.
Q- What did you say to that ?
A. I Baid nothing to it.
Q- Did he inquire for any particular horse 1
^' Yes, sir.
Q. What horse?
A. A light-colored roan horse in the stable, called Charley.
Q- Did he get that horse ?
^ Yes, sir.
Q Did you have any conversation with him about taking another horse ?
^' Yes, sir.
y What did he say about that ?
^' He did not like that horse so well. He wanted that light-colored roan horse.
V Did you finaUy give it to him ?
^ Yes, sir.
J. What else did he want?
^* Be wanted an English saddle and bridle to the same horse.
228 TBIAL OF JOHN H. SURBATT.
Q. Did he aek to see them ?
A. Yes, sir.
Q. Did you show them ?
A. Yes, sir.
Q. What did he aaj when you showed them ?
A. He did not say anything. I took him into the harness room.
Q. Did he say anything ahout the size of either }
A. No, sir.
Q. Did you show him a saddle 7
A. Yes, sir.
Q. What did he say of that ?
A. I showed him two different saddles, neither of which suited him, and he
picked out one of his own choosing.
Q. Did he take that?
A. Yes, sir.
Q. Did he say anything ahout the stirrups of the saddle ?
A. Yes, sir. 1 showed him a saddle on which were military stirrups, but he
did not like that so well as the English saddle and stirrups.
Q. Which did he take?
A. He took the iron stirrups, and the English saddle.
Q. Did he want a particular hridle ?
A. Yes, sir ; and I took him into the office and showed him the hridles.
Q. What kind of bridle did he select?
A. A double-rein bridle, with two bits on.
Q. What did he ask you before he mounted ?
A. He did not ask me anything.
Q. Did he at any time say anything to you about staying out ?
A. I asked him how long he was going to stay out. He said he did not
know. I then told him he could not keep the horse out any later than 8 o'clock —
9 o'clock at the furthest.
Q. When 8 or 9 o'clock came, what happened ?
A. Nothing happened at that time between him and myself.
Q. What did vou do ?
A. I did not do anything.
Q. Did the horse come back at that time ?
A. No, sir.
Q. What then did you do ? Did you go out to look for the horse ?
A. Not at that time.
Q. Did you at any time ?
A. Yes, sir.
Q. Did you see Atzerodt and Herold ?
A. No, sir.
Mr. Bradlbv. I do not like to interpose, but I must say that this is a ino«t
leading examination.
Mr. PiERREPONT. I admit it is leading, but I cannot get the witness to nar-
rate.
The Court. Let us try and see if we cannot. It is always best to aroid
leading questions.
Q. Can you tell when you saw these two men together ?
A. I never saw the two of them together that day at all ; I saw them sep
arately.
Q. Did you see them separately at your stable ?
A. Yes, sir.
Q. What did you do ahout 9 o'clock ?
A. When it came to 9 o'clock I had suspicion about the man not retnnuDg
TRIAL OP JOHN H. SURE ATT. 229
the horse. Atzerodt came after his horse about 10 o'clock. I sent one of
)oys down the stable to get the horse ready for him. He afterwards wanted
low if I would not go and take a drink with him. I told him that I had
)jection. He and I then went down to the Union Hotel and had a glass of ale.
^ked me if I would have any more. I thanked him, but told him I would
ake any more. Returning back to the stable, he said to me, " If this thing
ens to-night, you will hear of a present" When he had mounted his horse
narked to him, *' I would not like to ride that horse this time of night ; he
J too Bearish ." Said he, " He is good on a retreat." He seemed to be
much excited. Having suspicion of him,becanse of his acquaintance, Herold,
returning with the horse at 9 o'clock, as I told him to do, I followed after
and saw him alight in front of the Kirkwood House, hitch his horse out-
and then enter the hotel. I waited until he came out and mounted again,
went along the avenue a short way, and then turned into D street;
t along D street to Tenth, which he turned up. That was the last I saw of
I then returned back to the stable, and inquired at the office if the roan
e had come in. They told me that it had not.
By Assistant District Attorney Wilson :
[. What time was it when Atzerodt turned up Tenth street ?
i' I think it was ten minutes past 10 o'clock.
!• Did you see him again ?
- No, sir.
!• Did you see Herold again ?
^ Tea, sir.
!• Where ]
^. On the comer of Fourteenth street and the avenue.
!• State what he was doing.
^ He was coming down the avenue from Fifteenth street. He was not riding
r &8t. It seems he knew me. I went up to him and demanded the horse.
!• About what time was that ?
^' I think it must have been twelve minutes past 10 o'clock.
!• How long after you had seen Atzerodt turning up Tenth street ?
^. I cannot say how long. I walked just as fast a I could from Twelfth
et to Fourteenth street. When I demanded the horse from Herold he paid
[ttention to me, but put spurs into the horse, and went up Fourteenth street
«t as the horse could go, I kept siglit of him until he turned east of F
^t. I then returned to the stable, saddled and bridled a horse, and started
f him. I knew that Atzerodt had to cross the Navy Yard bridge in order
et home, and that this Herold being a friend of his, would probably go in
direction ; so I started in that direction. When I got east of the Capitol
et a gentleman, who said
t Bbadley. Don't state what he said.
^iTNKss. I continued on to the Navy Yard bridge, when I was halted by
puurd. I described Herold
Ij. Bradley. Never mind what was said.
HTNBSS. In consequence of information I then received, I returned back to
'table.
• State what became of those horses, if you know.
• I do not know indeed. We have never got ours since.
• Will you describe the one Herold had, and then the other ?
• The one that I hired Herold was a light-colored roan horse, black tail,
^ legs, and black mane.
• Large or small ?
• About fifteen hands high.
230 TRIAL OP JOHN H. 8URRATT.
Q. What was hie make ; was he compactly built, or otherwise ?
A. He was compactly built.
Q. What was his age ?
A. About twelve or thirteen years.
Q. What was his gait ?
A. Single-foot racker.
Q. As to his forehead, was there anything to mark it 1
A. There were no marks at all about him.
Q. Is there any single fact to mark him that will give a more complete de--
scription than you have ^ven ?
A. No, sir; only that his back was sore from a lady's saddle being placed oo
him so often.
Q. Had ladies been accustomed to riding him ?
A. Yes, sir.
Q. He was not, then, frightened at a lady's robe, or anything of that kind 1
A. No, sir.
Q. Now describe the horse Atzerodt had.
A. He had a dark brown horse.
Q. What was his gait ?
A. He was a pacing horse.
Q. Size?
A. Over fifteen hands high.
Q. Was his action quick or heavy ?
A. Very heavy.
Q. What as to his rapidity ; was he fast or slow ?
A. Very slow.
Q. What marks had he on him ?
A. He was blind in one eye ; his right eye was blind.
Q. You have never seen him since ?
A. Yes, Mr ; I saw him up at Major General Augur's headquarters, on tbe
comer of Seventeenth and I streets.
Q. When?
A. I think it was upon the 17th of May, 1865 ; I was sent from the militaiy
commission up there.
Q. What became of this one-eyed horse I
A. I do not know. They had him in the stable there. I do not know what
has become of him since.
Q. You did not receive him again ?
A. No, sir ; he did not belong to us.
Q. Whose horse was it ]
A. Atzerodt brought him to the stable ; I do not know who was the owner.
Q. Had you ever seen that one-eyed horse before ?
A. No, sir.
Q. When did he bring him to the stable ?
A. On the 3d of AprU, 1865.
Q. You are sure about the date ?
A. Yes, sir.
Q. Atzerodt brought him himself?
A. Yes, sir ; and another gentleman came there with him.
Q. Who was the other gentleman ?
A. I do not know who he was.
Q. Can yon describe the other gentleman who came with him ?
A. Yes, sir, I can.
Q. Suppose yon do.
A. He was a man of about five feet seven and a half, I think.
J
TRIAL OF JOHN H. SUBBATT. 231
Q. Of what age do jon think ?
A. Hia age, I think, was from thirty to thirty-five years.
Q. Give us his complexion, and the color of his hair.
A. He bad black hair, and wore a heavy black moustache.
Q. Was his face rough, or smooth ?
A. Very smooth.
Q. Was his hair straight, or curly ?
A. Curly — kind of; rather bushy.
Q. What was his size ?
A. He was something about my own make.
Q. Did he seem like a strong man, or a weak one ?
A. He seemed to be very healthy-looking.
Q. Thm, or stout ?
A. Thin ; about my own make.
Q. As tall as you ?
A. Yes, sir ; about the same height, I think.
John J. Toffev — residence Hudson City, New Jersey — sworn and exam-
ined.
By the District Attorney :
Q. Where were you on the 14th of April, 1865 ?
A. I was then a lieutenant in the Veteran Reserve Corps. I commanded a
company at Lincoln hospital, which was doing guard duty.
Q. What is your rank ?
A. Second lieutenant 4 2d Co., 2d battalion. Veteran Reserve Corps.
Q. State the particulars of what you did in connection with the horse cap-
tured by one of your guard on the suburbs of the city on the night of the 14th
of April, 1865.
A. On the night of the 14th, or the morning of the 15th of April, last — ^it
BUght have been a little after one — as I was going to the Lincoln hospital,
yhen I am on duty, I saw a dark bay horse, with saddle and bridle on, stand-
ing at Lincoln Branch barracks, about three-quarters of a mile east of the Cap-
rtol. The sweat was pouring off him, and had made a regular puddle on the
ground. A sentinel at the hospital had stopped the horse. I put a guard round
U, and kept it there until the cavalry picket was thrown out, when I reported
the fact at the office of the picket, and was requested to take the horse down to
&e headquarters of the picket, at the Old Capitol prison. I there reported
having the horse to Captain Lord, and he requested me to take it to General
Augur's headquarters. Captain Lansing, of the 13th New York cavalry, and
myself took it there, where the saddle was taken off, and the horse taken charge
<£
Q. Did you ever see him again ?
A. Yes, sir. I was ordered, at the trial of the conspirators, to go and see if
1 could recognize the horse at the stable.
Q- Who went with you ?
A. I went alone, I think.
Q' Describe the horse.
A. He was a very large bay horse. He was blind of one eye, although I did
oot notice that until I got to General Augur's.
Q. Which eye?
A. Really, I do not remember.
H- How about the saddle ?
A. The saddle was a sort of citizen's saddle, with army stirrups — small
ooden Bthrrups. The covering over the stirrups was off — of one, I know — I
232 TRIAL OP JOHN H. SUERATT.
Q. What time was it that 70U found him ?
A. I cannot tell the exact time — ^between 12 and 1 o'clock, I think.
Q. Did you ride him ?
A. I did.
Q. What was his gait ?
A. He was very much excited. I could hardly hold him in while goii
General Augur's office. He appeared a little lame when I was going down,
might not have been, however. He was excited, and quivering very i
when I first got him from the guard.
Q. Did you see him caught t
A. No, sir.
Q. How far was it from Tenth street where he was taken ?
A. It was about three-quarters of a mile east of the Capitol.
The court here took a recess for half an hour.
AFTERNOON SBSSfON.
HoNORA FiTZPATRiCK swom and examined.
By the Dfstrict Attorney :
Q. Be kind enough to state to the jury Whether you have not lived id
city some time, and whether it is not your native city.
A. It is ; yes, sir.
Q. What is your father's first name.
A. James.
Q. Will you state to the jury if you knew John Wilkes Booth ?
A. Yes, sir.
Q. How long did you know him ?
A. I do not know how long I was acquainted with Mr. Booth.
Q. Do you remember when you first formed his acquaintance, and who
was?
A. I met him at Mrs. Surratt's.
Q. Where was Mrs. Surratt living at that time ?
A. On H street, between Sixth and Seventh,
Q. Do you remember the number of the house ?
A. 541.
Q. Do you remember what year it was you first saw him there ?
A. I think it was in 1865.
Q. You do not recollect what month ?
A. No, sir.
Q. How often did you see him at the house, to your recollection ?
A. I met Mr. Booth there several times. I do not know how often I saw!
Q. Were you boarding at Mrs. Surratt's then ?
A. Yes, sir.
Q. How long had you been boarding there ?
A. From the 6th of October, 1864, until the time I was arrested.
Q. When were you arrested ?
A. I think it was some time in April.
Q. How long after the assassination ?
A. The assassination was committed Friday, the 14tli. I was arrested
Monday following.
Q. I ask you if you knew a man by the name of George Atzerodt ?
A. I did not know him by that name.
Q. By what name did you know him ?
A. I knew him by the name of "Port Tobacco."
Q. Where did you see him ?
TRIAL OP JOHN H. 8URRATT. 233
A. I met him at Mrs. Surratt's. ^
Q. About what time was it ?
A. I do not remember ; he called there one afternoon.
Q. Do you recollect what year it was, and what month ?
A. No, gir ; I do not remember.
Q How lon^ before the aBaassination was it that yon saw this man ?
A. I do not remember.
Q Was it not the day or night previous ?
A. No, sir; that was not the night.
Q. How often did you see this man at Mrs. Surratt's ?
A. I do not remember how often I met him there.
Q. Did you see him there more than once ?
A. Yes, sir. I think I have seen him there more than once.
Q. Do you remember his ever spending a night there ?
A. I remember he staid there one night.
Q. Do you remember what night that was — how long before the assassina-
tion r
A. I do not remember, sir.
Q. Gould you give any approximate idea of the time ?
A. No, sir ; I have no idea at all.
Q. Do you know how long you commenced boarding there before Atzerodt
came?
A. No, sir.
Q Did you know a man by the name of Lewis Payne, whom you saw before
^"e military commission ?
A. I did not know him by that name. I knew him by the name of Mr.
Wood.
Q- When and where did you first see him ?
A. I met him at Mrs. Surratt's also.
Q- How often did you see him at Mrs. Surratt's ?
A. 1 do not remember seeing him there "but twice.
Q- With whom did he come, and in what company did he come ?
A. He called there one evening by himself.
Q- How long was that before the assassination ?
A. I think it was some time in March.
Q- Was that the first time you saw him ?
A. Yes, sir.
x-.In what room did you first see him ?
A. I met him in the parlor.
Q- With whom was he talking at that time ?
A. He was not conversing with any one in particular.
H. Who were in the room at that time ?
A. Mrs. Surratt, her daughter Annie, Miss Holohan, and Mr. Weichman.
X- When was the next time you saw him there ?
A- I saw him in March, also.
X- Did you never see him there afterwards ?
A. No, sir.
X' You did not see him the day you were arrested ?
A. I recognized him at the office after I was taken there.
x« You did not see him at the house 1
y"' He was at the house, but I did not recognize him.
_ X When you got to the office you recognized him as a man whom you had
"*«''« the hou8e? ^ ^
^' I saw Mr. Wood, sir.
^' When you say Wood, do you mean Lewis Payne, whom you saw before the
34 TRIAL OF JOHN H. SUBRAlx.
A. Yes, sir.
Q. You know the prisoner, John H. Surratt ?
A. Yes, sir.
Q. Do you recollect when was the last time 70U saw him at 1
April ?
A. The last time I saw Mr. Surratt was two weeks before the «
Q. During these visits by Atzerodt and Payne to Booth, did yc
the house ? and if so, did you ever see or hear them conversing.
A. I have seen them, but never heard them conversing, togetbe
Q. Do you recollect in the month of March of going to Ford's
if so, state in whose company you went ?
A. I went with Mr. Surratt, Mr. Wood, and Miss Dean.
Q. State in what part of the theatre you were seated — whether
a box or seat in the orchestra.
A. We occupied a box, sir.
Q. When you say Mr. Surratt, you mean John H. Surratt, the
A. Yes, sir.
Q. And when you say Mr. Wood you mean Lewis Payne ?
A. Yes, sir.
Q. While your party was in the box, did you see J. Wilkes ]
state what he did.
A. Mr. Booth came there and spoke to Mr. Surratt. They botl
side the box, and stood there at the door.
Q. You mean spoke to the prisoner ?
A. Yes, sir.
Q. State if any one else joined them while they were standing
A. Mr. Wood.
Q. Lewis Payne, you mean t
A. Yes, sir.
Q. How long were these three talking together ?
A. They remained there a few mitTtites.
Q. Could you hear what they said ?
A. No, sir ; I was not paying attention ; they were conversi
Q. State, if you please, where that box was — in what part (
A. I think it was au upper box. I do not remember which 8
it was on.
Q. In what part of the play was this conversation — in t
the close 1
A. It was near the last part.
Q. After they separated, which way did they go, and w
party go ?
A. We returned to Mrs. Surratt *s house.
Q. Which way did Booth go :
A. I don't know, sir.
Q. Which way did Wood or Payne go ?
A. I don't know, sir. I returned to my room. I did
that night.
Q. l)id Wood go back to Mrs. Surratt's that night ?
A. He came up in the carriage with us. I do notkno'
there or not.
Q. Did you continue in the city, or did you go away
A. I went to Baltimore the next mornir.g.
Q. How long did you remain in Baltimore ?
^ -«mained in Baltimore a week.
"Korft this man Wood or Payne v
TRIAL OF JOHN H. SURRATT, 235
Q. Do you know whether he called at the Hemdon House in this city 1
A. Yes, sir.
Q. Where is that ?
A. I do not know what street it is on.
Q. I allude to the Herndon House corner of ninth and F ; you know the
hoose ?
A. I know the house, but I do not know what street it is on.
Q. Do you recollect passing bj that house some time in the mouth of March,
fibortly before the assassination of ^ the President, in company with Mrs. Surratt
and others ?
A. I remember passing with Mrs. Surratt ; I do not know what month it
was,
Q. Who were in company with you and Mrs. Surratt at that time ?
A. Mrs. Surratt, Mr. Weichman, and Miss Jenkins.
Q. When you got to the Hemdon House, state what Mrs. Surratt did and
what the rest of the party did ?
A. Mrs. Surratt went in, the others of us walked up the street a little ways.
Q. Did you wait for her up there ?
A. Yes, sir.
Q. How long did you wait for her ?
A. Only a few minutes there.
Q. Where had you been coming from ?
A. Frcffo St. Patrick's church, on F street.
Q. What day of the week was it ?
A. I don't remember, sir.
Q. Did Mrs. Surratt tell you or any of the party, to your knowledge, while
you vere going in that direction, that she intended going into the houae ?
A. No, sir ; I did not know she was going there until she stopped.
Q« Did you or any of tlie party ask her what she went there lor ?
A. No, sir.
Q« Did she state to you afterwards what she went in there for ?
A. No, sir ; I do not remember asking her.
Q. Did you ever hear it spoken of afterwards I
A. No, sir.
Q. Do you know how long she staid there ?
A. She remained there a few minutes.
Q* After Mrs. Surratt had been in the house did she come up and join the
Pmy?
A. Yes, sir.
H' Where did you then go ?
A. We returned to Mrs. Surratt's house on H street.
Q- Where was John at that time ?
j^' I don't know.
^ Q. How long after that was it before you saw Wood or Payne at Mrs.
°'*^att'8. Did you not see him the next day ?
^ No, sir.
H' How long was it before you did see him ?
^ I do not remember how long after that.
By Mr. PiBftREPONT :
J- Do you remember John Surratt going to New York.
^' No, sir ; I do not remember his going.
X. Have you any memory of his going to New York during the year 1865
^y^ytime?
^ No, sir.
X- Do you remember hearing him say anything about it at any time }
236 TRIAL OF JOHN H. SURRATT.
George F. Chapin sworn and examined.
By Mr. Pierrepont:
Q. State your residence and occupation.
A. I live in Stockbridge, Vermont, and I am a farmer.
Q. How long have you lived in that place?
A. Since a year ago last February,
Q. Have you at any time been in Burlington, Vermont ?
A. I moved from there in February, 1866.
Q. In the month of April, 186/5, where were yon?
A. I was in Burlington most of the time — not all of the time.
Q. What day near the middle of April were you in Burlington ?
A. I left Burlington on Friday evening. I have forgotten the day(
mouth. I was on my way to New Haven, Connecticut, with some recrnil
stragglers for Grapevine Point. I left there on Friday evening ; I have f
ten the day of the month.
Q. Can you fix the day with reference to the assassination ?
A. It was previous to it, that is, it was previous to iwhen I had heaid
I heard of it when on my way down, at Springfield, Massachusetts.
Q When did you go back ?
A. I went back on what they called the 3.15 train from New Haven, M(
I think the train left New Haven at 3.15.
Q. State whether this was before or after the assassination. •
A. This was after the assassination.
Q. State whether it was the Monday immediately following the assassii
or otherwise.
A. It was the next Monday after the assassination.
Q. You know, do you not, on what day of the week the assassination
A. It was on Friday of the previous week.
H. When you got back to Burlington did you see a witness who has h
the i^tand, Charles Blinn I
A. Not immediately. I did not go to Burlington that day.
Q. When did you see Charles Blinn, after your return from New Hav»
A. I should judge it was on Wednesday evening. I think that was tl
time.
Q. Where did you see him ?
A. At the Central depot in BurlingtoiL
Q. Will you state whether you there received anything from him tha'
noon ?
A. If I may be allowed^ I will explain why 1 saw him on that occasi
was not in the habit of speaking to him usually ; but on my way from
Junction
Mr. Brai>lky. You must not state your conversations with Blinn.
Q. l>id vou see him?
A. I did.
Q. Now tell us what occurred ?
A. Ho showed me an article : I looked at it. and told him I would
have it.
Q. What was the article ?
A. A pocket hamlkerchit^f.
Q, How was it marked ?
A. It was niarkiHl •John H. Surratt;" I think, "No. 2.'*
Q. Haw you it before you now ?
A. 1 should not riHH^irnizo it, from the way it Kwked then, because thee
very dirty. 1 think it is the same handkerchief. It looks like it.
Q. Have you seen Mr. Blinn here ?
TRIAL OP JOHN H. SURRATT. 237
A. I have not. He left before I arrived.
Q. What mark is there on the handkerchief you have before you?
A. It is marked " John H. Sarratt, 2."
Crods-examined by Mr. Bradlby :
Q. To whom did you give that handkerchief?
A. I gave it to George A. Gurnett.
Q. Who is he ?
A, Gurnett, he called himself to me. He called himself one of Baker's detec-
tives. He came to Burlington.
Q. And you think that was on Wednesday ?
A, I gave it to him the next week ; Tuesday, I think it was.
Q. Where did you see him ?
A. In Burlington.
Q. Were you a detective 1
A. I was.
Q. In Baker's employ ?
A. No, sir ; I do not know whether I was properly a detective. My appoint-
ment came from Captain Gleason, provost marshal of the 3d district of Vermont.
Q. Did you report at all to Major Giout, coniinanding at 3t. Albans ?
A. I did not ; I had nothing to do with him.
Q. Do you know where Gurnett is now ?
A. 1 dd not ; I have never seen him since that day.
Q. You left Burlington to go to New Haven on Friday evening ?
A. Yes, sir, by the 8 o'clock train.
Q- And at Springfield you heard of the assassination ; what time did the train
"rive at Springfield ?
A. About 7 o'clock ; sometimes later.
Q« What time that morning ?
A. I could not tell you the exact time. I had to wait there one train before
I vent on to New Haven with my recruits. If we met the other train from
Bwton we could go right on without stopping five min|ites ; but if not, we had to stop
<>ver until 2 o'clock. I arrived there in the early part of the afternoon.
Q- When was it that you received that handkerchief from Blinn ?
A. I did not receive it direct from Blinn until the day I gave it to George
"•urnett, on Tuesday, the 25th of April. I had previously seen the handker-
Q- When did you first see it 1
A On the Wednesday evening previous.
0- What enables you to fix that date ?
A On Tuesday morning when I returned from New Haven I went directly
home. I lived two miles out of Burlington. Then about the middle of the day,
fnesday, I drove over with my team and reported to the office and returned
^^ediately back. My wife was very sick. I staid there until Wednes-
j7' On Wednesday I went down to Essex Junction and left my team, and went
^^ in the Wednesday evening train.
V And you think it was on that Wednesday you first saw the handkerchief?
j^ Yes, sir.
X' Did you leave Burlington then, or remain there ?
A- I was at Burlington every day, more or less.
%• Between the first time you saw the handkerchief and the time you gave it
^ ^ttrnett, how many times were you at Burlington 1
. , A. I tii^nt I did not leave there again until Friday, when, I think, I was at
f rJJJ* Od Saturday I returned to Burlington, and left again on Sunday. I
\ PjJ^ not say I did not leave Burlington. I went home Thursday and etaid at
i aoBie Tharsday night, if I remember right.
238 TRIAL OF JOHN H. SURRATT.
Q. Now, sir, was it not on Saturday morning that you first heard of and
that handkerchief?
A. I think it was not.
Q. Is there anything in your memory which will enable you to fix vhe
it was Wednesday or Saturday morning, or some time during the day oh Si
day ?
A. I could not have seen him during the day on Saturday, or any other i
because he was away from Burlington during the day.
Q. He was not there on Saturday afternoon?
A. He came in Saturday evening to the depot.
Q. Before sunset ?
A. I don't know what time in the evening. He came in the evening and
early the next morning.
Q. What fact is there to fix it in your mind that you saw that handken
on Wednesday evening instead of Saturday evening ?
A. I do not know that there is anything that I could tell to you. I
boarding at the hotel. Mr. Blinn said he would take it home for his motbi
wash it. I called for it once after that, and he said his mother had been ai
that his brother had died ; that she had not washed it, but would do so.
Q. Can you fix the day when he said his brother died ?
A. I cannot ; and I cannot tell you whether it was Friday evening or Satni
evening that he made this excuse.
Q. Did not he tell you that his brother had died and his mother was ab
attending him on Thursday evening ; and did he not tell you this on Satu«
A. He did not tell me the particulars at all.
Q. Did you see any more than one handkerchief?
A. I ihink I did not. I
Q. Did he not show you two handkerchiefs, one marked " John H. Somtt
and one not marked, and both very dirty ?
A. If he did, I took very little notice of it. It was nothing I paid parti(
attention to.
Q. Did you not tell Gurneit there were two handkerchiefs ?
A. I do not think I did.
Q. Did you not tell Gurnett that you got a handkerchief on Saturday eve
marked John II. Surratt ?
A. 0, no, sir ; because I did not got it there.
Q. Did not you tell him that you first saw it on Saturday afternoon ?
A. No, sir ; I did not tell him any such thing. I could not have told
that, for I could not have seen him at any time during the middle of the d
Q. I did not say any particular time ; I mean in the afternoon of Satui
A. I do not think 1 told him anything of the kind.
Q. Did you tell him when yon first saw it ?
A. I probably did. I could not say.
Q. You do not recollect telling him that Blinn showed it to you on Sat
afternoon, and that there were two handkerchiefs together, both very dirtj
marked and one not marked ?
A. I have no recollection of anything of the kind.
Q. Do you mean to say you did not tell him ?
A. I do not mean to say I did not tell him, for I cannot remember ever]
I said two years ago.
Q. Did you make any statement to anybody else except Gurnett at th
in regard to that handkerchief?
A. No, I think not ; I do not think I ever made a statement in regan
from that time until last Saturday night.
Q. Did yuu make any report of it as a detective ?
TRIAL OF JOHN H. SURRATT. 239
A. I presume I might at the office have reported it verbally to Captain Gleasou'
at the provost marshars office ; I do not know.
Q. Where is Captain Gleason now ?
A. At Richmond, Vermont, I presume ; I have not seen him lately.
Q. What is his first name ?
A. RoUa, I think ; I do not know that he has a middle name.
Q. You remember seeing Captain Gleason at that time ?
A. I saw him usually every day. I was in his office when not on duty else-
where.
Q. You have no recollection of reporting this fact to him particularly ?
A. I do not think I did. He may have heard of it before I did.
Q. Did not you report the fact to him that yoa had given it to one of Colonel
Baker's detectives ?
A. No, sir; I do not think I did; the detective came there after me. Captain
Gleason showed him where I was, and he and I went away together.
Q. You and the detective?
A. Yes, sir.
Q. Which way did you go ?
A. We went to Winooski Falls, two miles nearly. It is in Burlington, near
the village.
Q. Bid you go there in reference to this handkerchief ?
A. Yes, sir.
Q. Did you go there in pursuit of any particular person ?
A. I went in pursuit of Charles Blinn. *
Q- When you found Charles Blinn did Gurnett take down his statement in
writing?
A» I do not think he did ; I am not sure. He may have done it. I did not
we him do it at that time.
Q. And you think that was the 25th of April ?
A. I think that was Tuesday, the 25th of April. Why I feel so confident is
from minutes I took at the time from day to day of what I was doing.
Q- Please turn to the 25th of April and see if you have a minute that you
received the handkerchief on that day ?
A. I do not think I have a minute of that kind. It is merely a minute of
^"ig with Gumett, and reads as follows :
"Tuesday, 25th of April.
George A. Gumett, Baker's detective from Washington. Went to Platts-
»"rg ou boat Canada. Came back on United States."
. Q- Now turn to the 23d and see what entry you have there, if anything
^ reference to this matter.
^' Nothing in reference to this matter.
By Mr. Merrick:
V You say you went from Burlington to Plattsburg on the boat Canada, and
*•»« back on the United States; are there two boats ?
A, Certainly, there were more than two boats at that time. One started from
*^^e'8 Point, going south, and the other from White Hall, going north. Each
^ from the north and south touched at Plattsburg. We went down on one
*f^d came up on the other. These were the two night-line boats, so called at
tkUtime.
Q- The Canada left White Hall on the night of the 25th, and the United
°^te8 left Rouse's Point the night of the 25th ?
y^* Yes, air, at the same time ; or the boat at Rouse's Point may possibly have
*^later, because they went further north than half way.
Q- Bid these boats run both on the nights of Saturday and Sunday 1
240 TRIAL OF JOHN H. SURRATT.
A. I gbould judge the boat startiug south and that going north on Saturdi
night would arrive on Sunday morning and lie over till Monday night.
Q. I understand the only circumstance that enables you to fix these dates
that you called on Blinn for this handkerchief, and that he told you his moA
had not washed it t
A. Yes, and the reason was on account of the sickness of his brother.
Q. You heard of the assassination on Saturday morning at Springfield, Mj
sachusetts. When did you first hear the names of any persons charged wi
complicity in that assassination ?
A. That I could not tell you. I could not fix any particular time.
Q. Did not you hear the name of Booth connected with the assassination
the same time you heard of the assassination ?
A. Very likely I did. I could not tell you positively in regard to that
did not hear it, I think, at that moment. I was just stepping off the train wb
the conductor said " Ghapin, our President is murdered." Said I, No? you i
fooling." He said, ** No, it is so," and then turned and went off about his bosina
That was the first I heard of it.
Q. Do you recollect when you first heard of John H. Surratt as being co
nected with the assassination ?
A. I have no recollection of hearing in regard to that any particular dma
probably heard it before I came back from New Haven, and I may have heu
it at New Haven. There was great excitement in New Haven at that time.
' Q. You heard it before Blinn told you he had the handkerchief, didn't yon
A* I probably did. I presume I must have heard it
Q. And that was the reason you wanted to have that handkerchief?
A. There could be no other reason.
Q. And you think that was on Wednesday evening, when you came dowB o
the afternoon train ? Did you not also come down on the afternoon train on Si
urday ?
A. No. I was in Burlington on Saturday, and left with my own teamo
Sunday ?
Q. You were then a detective ?
A. I was appointed as a special. As I understand the law, it allows tw
deputy provost marshals in the district. Captain Gleason had his complemeD
of provost marshals, and he gave me an appointment as special. I was in tb
office most; of the time when I was not away on business. I was sent to Nei
Haven with recruits and deserters, and went wherever I was ordered.
By Mr. Tirrrepont:
Q. Please turn "to Wednesday and state what date it was.
A. The 19th of April.
By Mr. Merrick:
Q. Did you go any further in pursuit of any matters connected with th«i
handkerchief than simply to go and see Blinn ?
A. I did nothing further, only to deliver it to Gurnett.
Benjamin W. Vaxderpoel, sworn and examined.
By Mr. Pierrkpont:
Q. State your age and residence.
A. ] am in my 2l>th year. I live in the city of New York; was boim
raised there.
Q. What was vour father's name ?
A. Jacob Vandorpoel.
Q. Will 3'ou state where you were in the commencement of the war ?
A. I was an attorney and counsellor at law in the city of New York.
Q. Who were you with I
TRIAL OF JOHN H. 8URBATT. .241
A. Brown, Hall & Vanderpoel.
Q. You were a connection of the Vanderpoel of that firm 1
A. Yes, sir.
Q. Wliat is your occupation in New York now 1
A. An attorney at law with Chauncey Schaffer, 243 Broadway,
Q. Where did you go in the commencement of the war 1
A. Into the army, in the 59th New York volunteers.
Q. What position did you hold in the army ?
A. I was fii*8t lieutenant of company G in that regiment.
Q. Were you captured by the enemy ?
A. I was captured at Ream's station, Virginia, on the 24th of August, 1864.
Q. Where were you taken after you were captured ?
A. I was taken first to Richmond, from there to Salisbury, North Carolina,
then to Danville, and from Danville back to Richmond again, when I was
paroled in the latter part of February, 1865.
Q. Before you went to the war did you know J. Wilkes Booth ?
A. Yes, sir.
Q. How happened you to know him ?
A He used to visit a club that I belonged to in the city of New York, next
to Laura Keen's theatre.
Q. What was the club?
A. The Lone Star Club.
Q- Do you remember the day of the assassination?
A. Very well, sir.
Q. Where were you?
A. I was in the city of Washington.
Q« How many days before the assassination were you here ?
A. Three days before.
Q' flow many days after ?
A. About two or three days after.
Q« Did you see John Wilkes Booth on the 14th of April ?
A. I did.
Q. Did you speak with him ?
^ Yes, sir.
Q- Did he know you well, and you him ?
, ^ Yes, sir — that is, he called me major; that is the title he generally ad-
"^aed me by.
J- Did you see him more than once on that day ?
^ I saw him at least three times.
J' Where did you first see him ?
^ It was just above Willards* on the sidewalk.
J- Where did you next see him?
t^ The next place I saw him was between 11th and 12th, or between 10th
T|^Mlth, on the left-hand side of Pennsylvania avenue, going ^*om here to the
5'^ House.
^ State whether you saw this prisoner on that day ?
jT^^^ prisoner made to stand up.)
Q I did see him at this place I speak of on the avenue.
J* Who did you see him with ?
Q- With Wilkes Booth, and two or three others in the party.
y* Tell the jury what they were doing.
J^ 1*hey were sitting around a round table, with glasses on it. This is all I
^*^ect now.
1^2^* Tell the jury the circumstances of your seeing him that day and what
T ^ere doing.
"^ I had been up to the paymaster's department on some business relating
242 TRIAL OF JOHN H, SURRATT.
to my accoiints. In coming out, I came down the avenue on the opposil
from the place I have described, and heai-ing music, I went across
what was going on at this place. As I went up stairs I think there was a n
dancing a sort of ballet dance. There was a stage or something of the li
the back part of the room.
Q. How was the room as to there being people in it ?
A. I should say there were 50 or 60 people there.
Q. Describe the table where Booth and Surratt sat.
A. It was a round table, as near as I can remember, probably four orfii
across.
Q. What were they doing ?
A. Apparently, talking.
Q. At what time in the day was it ?
A. It was in the afternoon.
Q. Was the room light ?
A. Yes, sir.
Q. Did you see them plainly ?
A. 0, very plainly.
Q. Were you near them ]
A. I was about as far from them as I am from you at the present time, (t
or fifteen feet.)
Q. Did you see them clearly ?
A. Yes, sir.
Q. Could there be any mistake 1
A. There is no mistake that I can see.
Gross-examined :
By Mb. Bradley :
Q. Did you speak to them in this place ?
A. No, sir, I did not. They were in conversation with themselves.
Q. Booth did not address you as major at that time ?
A. Not at that time.
Q. What time in the day did you make out it was ?
A. It is hard for me to say exactly the time. I went to the payn
department about 1 o'clock, and was there half an hour or an hour — I don'l
how long. I transacted my business and came down the avenue and we
this place.
Q. It was not dinner time ?
A. I hardly know what you call dinner time. I had not had any dinn
Q. Did you notice whether these gentlemen had anything to drink tl
not?
A. I did not ; I merely, as I came into the place, glanced at the table
they were sitting and talking the same as anybody else would do while
down there.
Q. Did you take anything to drink while there ?
A. I don't recollect that.
Q. Did you ever see Surratt before ?
A. I cannot say that I did.
Q. Did you ever see him since ?
A. Not until this morning.
Q. You have examined him very carefully this morning ?
A. I noticed one alteration. The goatee he has on now he did not h
then.
Q. You have examined him carefully, and you have no sort of doubt
the man ?
A. I have no sort of doubt he was the man I saw in that place.
TRUL OP JOHN H. 8UREATT. 243
Q. Toa saw him for how long a time ?
A. It may have been five or it may have been ten minutes.
Q. Then you stood five or ten minutes looking at the group of people around
that table?
A. I did not say that.
Q. Then you did not stand there looking particularly at them ?
A. Not more particularly than at any others that I know of. I noticed a
man I knew and some people in his company.
Q. Then you just glanced around on the party and saw Wilkes Booth and
three strangers with him ?
A I looked, not expecting to find him, and said to myself " Halloo, he's got
np here," and looked at him and saw two or three in his company.
Q. And you have daguerreotype d that look in your mind's eye ?
A. I have. .
Q. Two or more together ]
A Two or more together.
Q. And you therefore undertake to swear positively to the man you had that
glimpse of]
A. I undertake to swear to what I believe.
Q- You are as certain as that you see me ?
A. As certain as that I see you.
Q. Just as confident that you see the man you had that glimpse of two years
*go as that you are looking at me now ?
A. Ju3t as confident.
Q. AVho else was at the table ?
A. Two or three others besides Booth and this man.
Q. Can you describe them ?
A. I know one man was a thick-set, dark-complectioned man ; looked as if he
was a Frenchman. He had a foreign appearance about him — ^that was all I
noticed.
Q. Yon think you would recollect that man if you saw him ?
A. I think I could.
Q- The other two you did not notice so particularly ]
A. You will understand that with men sitting around a table I certainly could
^jji^i a full view of every one unless I walked right round the table. I had
* wil view of Booth and this man, who were sitting alongside of each other,
■^« that is the way I recognized him so particularly.
J' This was between 1 and 2 o'clock?
A. It was some time in the afternoon ; it may have been after 3 o'clock.
J* Can you describe how this gentleman was dressed at the time ]
A. X cannot describe hi.^ dress. I am a very poor observer about dress ; I
o^^i^lly observe a person's features, but not his clothes.
J* Can you tell whether he was dressed in light or black clothes ?
^- That I cannot tell.
J' l)id they have their hats on or not ?
^* Some did and some did not.
2' 1^0 you remember about his hair, whether it was short or long ?
J7' Ibat I do not recollect. I think his hair was very nearly as it is now,
^*p8 a little longer.
2' You remember he had no goatee ?
Q* 1 think not ; it was very light if he had any.
2" I want to know whether that man had a goatee at that time or not ?
Q* I do not think he had.
^* Yon think he had a moustache ?
o ^«-
^* Tou did not hear them conversing at all ?
244 TRIAL OF JOHN H. SURBATT.
A. Not close ; with fifty or sixty persons in the room, all talking, and
music, it would be impossible for me to hear conversation.
Q. Did you hear their voices at all ?
A. No ; I could not even say that, with all the noises going on.
Q. Then you went into a room, saw fifty or sixty persons sitting around tal
and a woman dancing at the lower end of the hall. You recollect certai
about that ?
A. I recollect abont that ; it was a novelty to me. It was the first tin
had ever been in the place.
Q. You remember there was a woman dancing ?
A. It was a woman or something.
Q. It was dressed like a woman ?
A. It was dressed like a woman. ^
Q. You are quite distinct about that ?
A. That is what I swear to.
Q. You are quite distinct that on Friday, the day of the assassination,
went in there and saw a woman dancing at the lower end of the hall ; yon
very clear about that
A. Yes, sir.
Q. And you think it was between Tenth and Eleventh or Eleventh
Twelfth streets.
A. It was along there ; I have not been there since to see.
Q. You do not know what the place was ? Was it the Metropolitan H
A. Metropolitan Hall or Washington Hall, or something of that sort, I a
not swear positively to the name.
Q. Who did you tell of it ?
A. I do not recollect that I told anybody of it.
Q. Did not you know that there was a hot pursuit after Surratt, and
inquiry whether he was with Booth or concerned with Booth on that day ?
A. Certainly I do.
Q. And you did not tell anybody that you saw him and Booth together t
afternoon ?
A. I did not, and for this reason : After this affair, a number of my fel
officers who had been present with me in the city, came to me and said, *' V
derpoel, I would not be in your shoes for anything in the world ; you will I
your commission." Said I, ** What for ? *' They said ; " Because you wereal«
with Booth." I packed up my traps and started for the army. The detecti
arrested me just as I was getting on the boat, and took me up to Tenth stn
finally I got round to General Augur's office and explained matters as well i
could, and went back to the army.
Q. Had you not leave of absence ?
A. Yes, sir. •
Q. Was it not of the utmost importance, if you had seen Booth and b
with him that day, that you should have made it known ?
A. I can see now that it was ; but I have explained what my motives ^
then. When officers jeered at me and told me they would not be in my shoes
anything, I wanted to get away, and that was the reason for what I did.
Q. Did you not know that if you had been in Washington only two or tl
days, on leave of absence and on legitimate business, you were safe here ?
A. Certainly.
Q. And yet with this knowledge that there was a hot pursuit after Booth
all persons concerned in this horrible crime, you locked this information in ;
own breast and waited until now to disclose it.
A. Self-preservation is the first law of nature. I wanted to take care of
self first.
TRIAL OF JOHN H. 8URRATT. 245
Q. Let me aak you whether Belf-preservation would not have been best con-
sulted by giving all the assistance yon could in the arrest of Bootii ]
A. I do not know.
Q. Did it occur to jou that the fact of your departure, after having been seen
with Booth, might render you in much greater danger ?
(Question objected to by district attorney as calling for opinions of witness,
and not facts.
The CorRT. The witness may answer the question ; it is not evidence though.)
A. I think, in the view you put it, it would have been better for me to come
out witli what I knew. We can all see these things afterwards, on second
thought. Probably I did wrong in not coming out and tilling what I knew.
Q. When did you come out ?
A. Now, here, to-day.
Q. When before to-day ?
A. I have never said very much about it.
Q. How was it known that you knew anything about it ?
A. I eaw the trial of John 11. Surratt in the paper, and came on myself. I
WW that the trial was progressing, and read an editorial in the New York
Herald about it, and came on.
Q. When you came on what did you do ?
A. I reported myself to Mr. Carrington.
Q. Without a summons ?
A. Without a summons.
Q. Now I understand that you had never seen John H. Surratt before, nor
Bince, 80 far as you can recollect ?
A. I said I saw him that particular day ; I did not say whether I had seen him
wfore or since.
Q« How could you know it was John H. Surratt you saw there, and come
*fld tell the district attorney you saw him there ?
A. I could not ; I came on here to see if one of the men I saw was John H.
^I^^tt. When I came into court I was convinced it was, and that is all I
know about it.
Q' And that is the whole matter ?
A. That is the whole matter.
By Mr. Pierrepo.nt:
Q* I want to know if there is a difference in people in their capacity of
'^n^^mbering faces ?
(Qiftstion objected to as immaterial, unless the witness is an expert.)
Mr. PiKRRBPONT. I am going to ask whether he is an expert in remembering
wman faces or not.
The Court. You can ask him what his capacity is for rememlbering faces.
^- PiBRRKPONT. I will ask that question.
A. I jj^yg very seldom seen any one who would remember faces so well as I
^* 1 have met people 1 have not seen in ten years and gone up to them and
«»«ed them by name.
Y You may state whether you have had it tested ?
^ Yes, sir, I have.
By Mr. Bradlev:
y* You have recognized persons yon have not seen for ten years ; did you
^? recognize a man you only had a glimpse of once after an absence of three
^'"^^r years?
. ^ Yea, sir ; I have done that. I have recognized people I have only been
'^'ftpanv with uTinA. filYepn. twftnftv. or twftntv-five minutes.
^"^Pany with once, fifteen, twenty, or twenty -live
Vc» There you have had your attention drawn to
you have had your attention drawn to them by conversing with
246 TRIAL OF JOHN H. SURRATT.
them and seeing their manner. Can you recollect any instance in which y ^
have been able to recollect a man yon have seen casually sitting at a table, j i^
to glance at him, and not see them for two years afterwards ?
A. Yes, sir ; I have known occasions of that kind.
By Mr. Merrick :
Q. Do you recollect that woman's face you saw dancing ?
A. I did not pay much attention to her face ; I paid much more attention,
her legs.
Q. Do you think you would recognize them if you were to see them ?
A. I do not think I would.
Saturday, June 22, 186r-
The Court met at 10 a. m.
Mrs. Martha Murray sworn and examined; residence, Washington.
By the District Attorn ky :
Q. State where you live.
A. I stop now at the Hemdon House, corner of Ninth and F streets.
Q. How long have you been living at the Herndon House ?
A. For ten years, there in the house.
Q. What is your husband's name ?
A. Patrick Jones Murray.
Q. Is he proprietor of the Hemdon House ?
A. He was at that time, but he sold out long ago ; he is not now.
Q. What period do you refer to when you say " at that time ? "
A. To the year 1865 ; about the month of April of that year.
Q. It was a hotel at that time ?
A. Yes, sir.
Q. Where is the Hemdon House ?
A. At the southwest corner of Ninth and F streets, opposite the Patent Office.
Q. During the year 1865, did a man by the name of I^wis Payne or •* Wood"
board at that house ?
A. There was a man who stated he was that man who boarded there. I tes-
tified before the military commission at the arsenal on the occasion of the trial
of the conspirators, and I at that time stated, when asked about themanPayne»
that to the best of my knowledge I had seen his (Payne's) face before, and that
it was at our house that I had seen it.
Q. How long did he remain with you ?
A. From Friday till that day two weeks.
Q. Do you remember what month ? and if so, what day of the month it w«»
that he left your house ?
A. I declare I cannot tell now. I gave the statement on the occasion of th«
other trial, and I suppose it is on record. I think it was on Friday.
Q. Was it on " Good Friday," the day of the President's assassination ?
A. I know he was two weeks at our house.
Q. What month was it ?
A. It was before the assassination of the President.
Q. How long before ?
A. Two weeks before. He left our house on Friday, and it must have beed
that very Friday. It is on record there, and I presume you can ascertio
from that. I mean the day of the assassination.
Mr. Merrick. I object, your honor, to the witness stating condnsions fio*
premises of her own, and desire that she should be restricted to facta.
The Court. She can state the fact as to what day it was, and then give fl^
iea0(m0 why she believes it or knows it to be that day. The witness wiUfi^
066d*
TRUL OP JOHN H. SURRATT. 247
W'lTNBSS. The day of the assassination this man was at our house. We
always had a four o'clock dinner. He came into the sitting-room, or the place
"where persons generally came in to pay their board, and said that he wanted to
pay his bill ; that he was going away to Baltimore. He paid his bill, and I
ordered dinner for him ; or rather, called the man and told him to have his din-
ner sent up to the dining-room earlier than usual. It was then three o'clock.
It was done, and that was the last I saw of him.
Q. Do you know what room he occupied in your house ?
A. Yes, sir, I do.
Q. State it.
A. He occupied the front room right on the corner of Ninth street ; room
called "No. 6."
Q. What story ?
A. I do not know, hut I suppose the third story. The parlor is on the second
8tory, and it was the room over that.
Q. Do you know whether any one came to your house in company with him
when he first applied for board ?
A. No one at all. It was to me he applied. I was coming down stairs when
lie came in and asked me for a room. No one was with him at the time.
Q. Did you know Mrs. Maiy E. Surratt ?
A. No, sir.
Q. Do you remember of her coming to your house on any occasion ?
A« No, sir.
Q. Do you know the prisoner, John H. Surratt ?
A. No, sir.
Q. Any member of his family ?
A. No, sir.
William H. Bell, servant — residence, Washington — sworn and examined.
, By the District Attorney:
Q. Whose servant are you ?
A. Secretary Seward's.
Q. How long have you lived with Secretary Seward ?
A. Three years.
Q. In the month of April, 1865, were you living there ?
A. Yes, sir.
Q. State whether you remember the occurrence at Mr. Seward's house on the
^^th of April, on the evening of that day.
A. I do.
Q. Will you commence at the beginning and state what you saw ?
, A. On the 14th of April, 1865, I was in the house of Mr. Seward, at the
*^ of the assassination. About a quarter past ten, I presume it was, the bell
^^. I went to the door. A tall and heavy-built man approached. He
J^emed to be a young man, so far as I could judge. He said he wanted to see
Jfr Seward. 1 told him that he could not. see him, from the very fact that Mr.
P^ward was sick in bed, and the orders were strict not to allow any one to come
1^. He said, ** I am sent here by Dr. Verdi, Mr. Seward's family physician."
^e held in his left hand a little package, which I supposed to be a prescription.
It bad a prescription paper on it. He said he wanted to see Mr. Seward. I
Jatcd he could not see him. He says, *'I must see him; I am sent here by
l^r, Verdi to let him know how to take this medicine, and I must see him." I
HjB, "You cannot see him by any means at .all; he is asleep just about this
time." He insisted that he must see him. I spoke rather rough to him. He
Parted to go up ; and having spoken rather rough to him, I said to him that I
tfped he would excuse me. I had no idea then that he was an assassin. He
rpoke rather politely to me, and said, '*0h, that's all right." I told him that I
248 TRIAL OP JOHN H. SURRATT.
was just doing my duty. Of course I had no right to insult him, not knowing
who he was. He started up stairs, and I went on ahead of him. When he bri
reached the third story, and got near Mr. Seward's door, Mr. Frederick Sewaxi
came out of his room and spoke to him. He told Mr. Frederick that he wanted
to see his father ; that he had been sent there by his family physician, Dr. Verdi,
with a pi*e8cription. Mr. Seward went into his father's room, and observing thai
he was asleep, came out and pulled the door to after him, and told this man thai
he could not see his father ; that he was asleep, and that he would give him the
prescription ; he would attend to it. The man said that would not do ; and
thereupon a discussion arose between the two as to whether he should be ad-
mitted or not, Mr. Frederick insistuig that he should not, and the man ioBistio^
that he would see hkn. Finally, he commenced talking so rougli, that I ttid
to him, ** Don't speak so rough to that gentleman ; that is 3fr. Seward's 8on,tho
Assistant Secretary." I had been standing by the side of the man all this tine.
He was very polite to me, and said, " I know that ; that id all right." After
awhile he pretended that he had come to the conclusion to leave the houae^ I
suppose, as he started to come down stairs. I got in front of him, and attemplel
to lead him down. He walked very heavy going up, and also coming down.
He had on new boots from all appearances, from the noise they made. I tnniei
round to him, after having come down three steps, he behind me, and said to
him, "Don't walk so heavy, please." He replied, "I know that; that ia aD
right." By the time I turned round to make another move to come downBtaiffif
he had jumped back, and had Mr. Frederick by the collar hitting him over 4e
head. What he struck him with I am unable to say, but 1 think it was a knifiB.
I then came down stairs immediately, ran to the door and gave the alarm. I
ran down as far as General Augur's office.
Q. Where was that ?
A. At the corner of Fifteen-and-a-half street and Pennsylvania avenue. From
the noise that I made three soldiers ran down off the piazza ; but by that time
he had run out.
Q. You have stated where General Augur's headquarters were ; will you now
st^ite where Mr. Seward's house was ?
A. Mr. Seward's house is right in the centre of Fifteen-and-a-half street, be-
tween H and Pennsylvania avenue.
Q. In this city and District?
A. Yes, sir.
Q. Difcitrict of Columbia, and city and county of Washington ?
A. Yes, sir.
Q. On what square does it front ?
A. It fronts on Madison square, west side.
Q. What eqnare is front of it 1
A. Lafayette square.
Q. Is there any sUitue in the square?
A. Yes, sir.
Q. What is that ?
A. Jackson statue.
Mr. pIKRR^:p()^T. Now proceed with your nan*ative.
A. After those three soldiers came down, as I was going on to say, the assaM*
ran out of the house and got on his horse. When I came down from the etai*
I did not observe his horse at all in front of the door. When he got on tt
horse these three soldiers were about three paces behind me. I hallooed, "Theirt
he is, getting on his horse now." He got on his horse and started off towardB
street, 1 behind him, and also these three soldiers. He kept on up 15J streB
to I, when I lost sight of him. Whether he went out Vermont aveuue c
15th street, 1 am unable to say.
Q. When did you next see the man ?
TRIAL OF JOHN H. 8URRATT. 249
A. To the best of my recollection it was the 17th of April, at General Augur's
kadqaarters.
Q. Who was he
A, He gave his name as Lewis Payne.
Q. He was the one who was tried as Lewis Payne ?
A. Yes, sir ; the one who was tried and convicted.
Q. I do not remember whether you picked up anything, or whether it was
•ome other person ?
A No, sir ; I did not.
Q. YoQ neither picked up a hat nor a pistol ?
A. No, sir ; but they were both picked up in the house next morning.
Q. Did you see them ?
A Yea, sir ; Mr.* Suuton, the Secretary of War, showed them both to me.
Q. Yon would recognize them if you were to see them again.
A I would recognize the hat, but I am unable to say whether I would recog-
iH«e the pistol or not.
Q. After you went back, did you go into Mr. Seward*s room ?
A Aflter I came back, I went into the hall, and lirst met Colonel Seward.
He had a wound on his forehead and one on his wrist, and was standing there with
ftpbtol iD his h:md, the hall at the time being crowded with people. That was
not over two minutes after the assassin had left the house. The whole occur-
ence occupied but a minute or so.
No cross-examination.
Frederick W. Sbward, Assistant Secretary of State — residence, Washing-
toiH-?worn and examined.
By Mr Pi R R R kpo n t.
Q« Will you state, if you please, what official position you occupy ?
A That of Assistant Secretary of State.
Q- Were you such in April, 1865 ?
A Ye«, sir.
Q- In April, 1865, where did you reside ?
A I resided with the Secretary of State, at Madison Place, where I do at
present.
Q- Opposite what square ?
A Opposite Lafayette square.
Q- What is the number ?
^« I think there is no number.
\- How is it with reference to the square ?
j- It is about opposite the middle of the end of the square.
X' State where General Augur's headquarters were at that date.
A General Augur's headquarters at that time were in the next house,
^ the left-hand side. They were on the corner of the avenue and Madison
^«ce,or 15 J street as it is sometimes called.
Q- Close by ?
jP' The next house. The houses do not adjoin, but they stand near each
. X- As a mere technical matter I will ask you in what District and county the
^ In the city of Washington, District of Columbia.
x» Did you know Ford's theatre, the place where the President was shot ?
^ Yes, sir.
x» On what street was it? •
^ I am not sure that I can state the number of the street.
\* Ton have been at the theatre ?
250 TRIAL OP JOHN H. 8URRATT.
A. Yes, sir ; I know its locality, but I cannot state what street it is on.
Q. Will you state in what city, district, and county, the theatre where the
President was shot and killed is ?
A. In the same district, city, and county that I have previously mentiooedi
Q. City of Washington ?
A. Yes, sir.
Q. State where you were on the night of the 14th of April, 1865.
A. I suppose you have reference to the time of the attempted assassinatioik^
Air. PiEHREPONT. Yes, sir.
Witness, resuming. At that time I was iu my own room, which adjoins th^^
of my father, in the third story of the house.
Q. Will you please explain which way the house fronts ?^
A. The house fronts towards Georgetown.
Q. It fronts the square exactly ?
A. Yes, sir.
Q. State the position of your father's room in the third story ?
A. His was the front room in the third story, on the south side.
Q. At the comer, was it ?
A. Yes, sir ; the left-hand comer as you front the square. My room was on
the other side.
Q. Same front?
A. Yes, sir; the two rooms occupy the whole width of the house.
Q. What was your father's condition then ? Describe how he was situated
'that night; and state where he was.
A. He had been badly injured by a fall from his carriage several days before.
He had a fractured arm, and a fractured jaw, and some apprehensions were
entertained that he might not recover from his injuries. He was under medicil
treatment at the time, and was kept as quiet as possible in his room.
Q. Will you state his condition and position in the bed, whether he waslyiagr
or whether he was on a frame work, or how ?
A. He was usually lying in a recumbent position, but generally about beli
raised by one of those frame works which are made for the accommodation of the
sick, and mostly used in hospitals.
Q. What was his physical condition on tiiis night ?
A. He had been very restless during the day, and it had been difficult to
compose him to sleep. On this night we were all endeavoring to keep him tf
quiet as possible, iu order that he might sleep.
Q. Which arm was broken 1
A. The right arm.
Q. Do you know on which side of the bed he was lying?
A. He was lying on the side towards the front of the house.
Q. State whether that was the right side of the bed.
A. It was the right side of the bed as he lay in it. His object in lying there,
as we understood at the time, was to prevent his broken arm from coming i»
contact with the bed. He lay right on the edge of the bed, and his arm pro-
jected over. During the day the nurses were continually watching to see thit
he did not fall from the bed, as he insisted on lying just at the edge in order tl
ease this arm.
Q. State who the nurses were, and who were in the room at this time.
A. My sister was in the room. The nurse, George Robinson, was in tke
room also, when I left it. I had, as I have before stated, stepped into my owi
room. From our anxiety to keep the sick-room quiet, we had as few remaiaii
there as possible.
Q. Your sister was a young lady, unmarried?
A. Yes, sir.
Q. Is she living 7
TRIAL OP JOHN H. 8URRATT. 251
A. No, sir; she is dead.
Q. "Was jour mother in the house ?
A. Yes, sir ; she was iu her own room, I think, though I did not »Qe her at
tLat time. Jler room was a back room on the same floor. It was on the same
side of the house with my father's room.
Q. "VVas Mrs. Seward, your wife, in the house ?
A. She was, and was in my room.
Q. State whether your mother died afterwards ?
A She died on the 21 at of June following.
Mr. Bradlev. I would like to know where all this is to lead, and what is the
object of it.
Mr. PiERREPONT. My object is to show the reason why these parties are not
called here — to show that they are dead.
Q. Will you state who else was in the house ?
Mr. Bradley. I presume it is understood that all this examination as to the
acts of any of the other of the parties named in the indictment, except the pris-
oner, is subject to our exceptions ?
Mr. PiERREPO.NT. Certainly; that is understood.
Q. Will you state who else were in the house ?
A. My brother, Augustus H. Seward. I do not know that there were any
other persons at that time, except the nurses, servants, and visitors, who were
coming and going during the evening.
Q- Will you state fill that occurred on the evening in question, as far as your
memory will serve you ?
A. About ten, or a little after ten, o'clock that evening, I heard the sound of .
•ome persons coming up stairs. 1 stepped into the hall to see who it was. At
[ W6 head of the stairs I met a man wearing a hat with a light overcoat, well
wpwed and tall, who said that he was a messenger from Dr. Verdi. He either
8Md 80 or William Bell did. I cannot now recall which. William Bell, I
^I state here, came up with him. The man said that he was instructed by
we doctor to deliver some medicine to my father, and to deliver it personally.
A cannot recall tbe words or expressions that either of us used, but the sub-
•tftnce of the conversation was that I told him that we were endeavoring to
Compose my father to sleep, and did not, therefore, want him disturbed, and
^t I would take the medicine and give it to him. To that he replied that the
Joctor's orders were that he should see him personally. I made objections and
**c insisted. I went over the ground, I think, several times with him, the con-
gelation lasting, perhaps, three or four minutes. He made the impression
^ponme of being a man rather dull of comprehension, and as having no desire
^tktr than to obey his orders literally. Finally I said, " It is not worth while
^ talk any longer about it ; you cannot see Mr. Seward. I will take the
Jttponaibility of refusing to let you see him. Go back and tell the doctor that
*iefn8ed to let you see him, if you think you cannot intrust me with the medi-
^^ I am Mr. Sew^d, and in charge here. He will not blame you if you
^ him I refused to let you see him." He hesitated a moment, and then said,
**Very well, sir, I will go,'* or words to that effect. He turned about, and as I
•^posed proceeded to go down'stau's. He stepped down, I think, one or two
Jtew, and I had turned, or was about turning, to go to my room, when a noise
Wind me occasioned me to turn and look back. I found that he had turned
^k and was springing up the steps with a pistol in his hands. The next
Anient he was at my side, with the pistol at my head. There was no time for
^l»ouyhfc or reflection. I remember only thinking at the moment that there was
^ additional reason why he should not go in. I did not go so far as to logically
^Mke out what his object was. I remember noticing the bhape of the pistol,
>iueli was that of a navy revolver. The next instant I heard the click of
tk Iock« and then remember to have thought, " Well, the pistol has missed
252 TRIAL OP JOHN H. SURBATT.
fire." Then InBtinctively I raised my hands to take hold of him. A stn
ensued, and after that my recollections hecame indistinct and blurred, bt
near as I recall I felt my right-hand pressing against the wall — I presnm
save myself from falling; and that putting my lef 
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